Loading...
HomeMy WebLinkAbout1984-0406.Albrecht et al.86-12-18I 406/84 IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TffE GRIEVANCE SETTLEMENT BOARD Between: OPSEXl (James M. Albrecht, et al) -and- Grievers The Crown in Right of Ontario (Ministry'of Correctional SetviceS) Employer Before : G. Brent D. T. Traves w. A. tibraico . For the Griever: David I. Bloom Counsel, Cavalluso, Hayes and Lennon Barristers and Solicitors For the Employer: James Benedict, Manager, Human Resources Mai?agemWt Rearing: August 9, 1985 December S/l985 February 28, 1986 April 11, 1986 September 20, 1986 Vice-Chairman Member Member ‘, ., _ .,_. ._.__ :.. ..::.. .:. ,.., . _. ., ,. __. _ . ..~._ .,. I -::--- . : 2 There are 170 individual,grievances filed by employees in four classificat&ons at the~Guelph Correctional Centre. By agzeement of the parties we .heard evidence and argument concerning one.of those grievances only - that of R E. Barber,-who is a Correctional Officer 2. The'partLes expressed the hope that they could use ou decision in ,+is~ ona case as guidance to resolve the .other grievances. All of the' grievtices were filed in early 1964, &d all deal with allegations thdt the employees concerned were not paid overtime in accordance with Articles 7.2 and 13 of the collective agreementwhichwasin force a; ,thattime (1982 - 1983 collectivb agreement). 14r.B&ber'$ grievance (Ex. 1) is dated February 20, 1984. There were no preliminary objections raised concerning the 3urisdiction of the Board or the arbitrability of the grievance. The grievance'requires bn examination of work schedules in force at the Guelph Correctional Centre at varidus ti,mes. .The EUiplOyer requested that, in view of the nature of the 'institution, the award not be specific concerniag its staffing requirements. we consider that that is a reasonqble request, and therefore we will attempt to ,avoid any raferences to specific staffing requirements. The grrevor has been employed at the Guelph Correctional Centre since early 1975 and has been an official of the local union since 1976. The first collective agreement between the parties came in&effect sometime in 1975. Theprovisions in Article 7.2, 8.1 and 13.1 have not changed in .substance since that first agreement. Prior to 1979 the griever worked on a rotating shift schedule which requiredhim to work thirty-five days with fourteen days off in every seven weeks. This schedule also required the griever to work.seven days followed by~three days off for the first forty days of the cycle.and then wrk seven days followed by two days off for the last nine days. There is no doubt that'sinca 1977, when Mr.: Taylor, the Superintendent of the GuelphCorrectional Centre, came to the Centre, the Unidn and~.the Employer have held discussions coacernirig shift schedules. It would appear that in 1977 'the Union.began 'discussing the question of static midnight sbifta with the Employer and that ft agreed with Mr. Taylor's proposal that the shift schedule then being.worked remain in,effect for the next six months while other avenues were explored (see EL 3). Sometim~e in mid 1978 three schedules were proposed as possible alternativesF The griever's evidence wasp that Mr. Taylor ,considered and reJected the Union's' alternative schedules because he judged that they did not give him the coverage which he felt he needed at various.times of the day. The Union’s evidtnce was that it agreed,with none of the. shift schedules proposed by Mr. Taylor because it did not want shift rotation, 'but that it agreed to put Mr. TaylOr'a three proposals to a vote of the membership as the "best of a bad lot",'and because.the Employer would implement a.shift schedule unilaterally in any event if .it did not agree to a vote. .A supervised vote took place, during which all bargaining unit members had the opportunity to vote, and the shift schedule which received the most votes cast was the schedule which was implemented in early 1979; Mr. Taylor testifiedthathe was willing to look atanyproposal which would provide him with sufficient manpower to cover all positions when they were required to be covered. He said that various schedules which had been proposed by a number of bargaining unit people were examined by both parties, and that there,were only three schedules which ., ,, .; .._.. , ..,_~ _-..._.. _.., _..._..,_. .,._ .L... . . . . . ..-. ._..... ..~ ..-_ .,,. “. ,-,_.. -‘..... .-. _ . . .,.... ., a .,i L \ ‘V’ i * .;’ 4 they agreed~provided the necessary coverage and balance. It was nt. ~aylor's evidence that the days off pattern waS always acceptable to the Union. The grievor.agreed that at no time did the Union inform the Employer that it considered the proposed,shift Schedules to be ins violation of the collective agreement. Be said that he did not know thenbhetheranyofthem wereinviolation of the agreement. He also agreed that the static Shift proposals put forth by the Union could involve working five or six days in a row before days off. Discussions concerning the shift schedules continued between the parties after that. In 19UO they agreed 'to explore a static shift arrangement again and to propose the static shift option to the bargaining unit. They agreed that a vote would be held of the bargaining unit employees to see if a significant malority (agreed upon as 66%) &nted a static shift arrangement. The vote was held and 58% of the Voters were -in favour bf static shifts. ~Accordingly, there was'no change in the sbift'schedules following that vote. Once againin~late 1961 or early 1982 the parties discussed shift scheduling. At this time the Union was proposing the possibility of a static midnight shift. The union's proposal also involved specifics regarding the numbers which would work days, afternoons and midnights, and involved,working five days at a Stretch instead of seven It would appear that the Union's Specific proposal was first put to the Employer in September, ~19M2 at a regularly scheduled Employee Relations Meeting. It would appear that the matter was discussed and considered at various levels for some time hut that no agreement or decision was reached concerning the proposal. The griever testified that sometime in December, 19M3 he first . . became aware of this Board's decision in KeIr (GSB File 36,2/60), which had been decided in September, 1981, and realized that the decision had been looking at a shift schedule which was similar to the one being worked at Guelph. he said that he spoke to his supervisor and let it be known that he vanted overtime for those occasions where he worked more than.five days in a calendar week. He also said that the Employer agreed that the grievance which he was to file would be held in abeyance, withoutprs3udice, pend.iag the outcome of discussions between the parties. Mr. Taylor testified that the only knowledge he hasfs that there was a discussion with the grievor about his claim without mentioning the Kerr case sometime in late 1983, aadthatthe griever ,simplyindicatedthathe would.withdraw andhandle a different way". The grievance was filed in Fehruaxy whenthe Unioh decided tbathothing .was being resolved. The shift schedule which the griever worked from 1979 until September 10, 1384 (Ex. 2) is one which is similar inpatternto that set out in thegerr decision (supra). It shows that in any calendar week (assuming for these purposes that a calendar week begins on Monday) the griever may work five days with two consective days off, four days with three consecutive days off, six days with one day off, three days with four days off, or seven days with no day off. In a seven calendar week pariod,tbree weeks are five day work weeks, one is a four day work week, one is a three day work week, one is a six day work week, andone is a seven day work week. The griever has been paid as though all work weeks contained five working days, even though two out of seven contain fewer than that and two contain more. On March 20, 19d4 Mr. Taylor wrote to Mr. Rafter, ,who was then the ‘8 ,l ’ 6 : ‘L L president of,the Union local, and, among other things, informed him that hehadbecome aware of dissatisfaction with the shift schedules, and that schedules which complied with the Kerr decision would be .- implemented (see Exhibit 6, page 3S), and attached the proposed schedules which were to be implemented "as soon as possible with due cousideration.'to proper notice being given to all concerned” (E% 6, p 3Sl. On.April4, 1984 the grievor, in his capacity of Chief Steward, wrote to Mr. Taylor requesting a meeting to present alternatiVe schedules (Ex. 6, i. 53). There then followed meetinqs and consultations betweentheparties which culminatedin the agreement (Ex. 5) executsd September 27, 1984, which sets out the compressed woFk week and schedules agreed to by the parties, which were effective September 10, 1984. The agreement could be terminated hy written notice of four weeks given by either party.. In his letter of March 20th (Ex. 6, pages 37,and 38) Hr. Taylor also said: All of the schedules they are uow woriring were implemented after consultation, and submission of proposed schedules by staff, followed in most cases by a vote supervised by theunion. This was in 'accordance with Article 7.6 of the Collective Agreement. Some of the agreements were in writing and others not, but all were implemented in good faith and most have been in force for several years. If your Executive were not happy with any schedule, why was this not conveyed 'to me, especially in light of the factthatthe decision on the Kerr Grievance has been known for over two years? It was tir. Taylor's evidence that he believed that he had an unwritten agreement with the Union concerning the Correctional Officer 2 schedules. Be also saidthatitcrossedhis mindthattheUnion could terminate the unwritten agreement without notice and that he considered that the %te&upon” schedule of 1979 was in ,force until they told him . . 7 otherwise. He also testified that her was first aware of the Kerr decision sometime in mid 1983 butthat he concluded that it did not apply to the situation at Guelph because it dealt with an imposed schedule and he had an agreed upon schedule. The griever estimated that it would have taken the Employer three to four months to implement a new,shift schedule unilaterally,as Nr; Taylor originally proposed. He further agreed that there was no untie delay between April and September in'agreeing to and implementing the uew shift schetiles as set out in Exhibit 5. Wr. Taylor testified that it took him two days to generate the schedules which he proposed implementing in his March 20th letter. 'He also said that it would be realistic to consider one month to be a reasonable time period in which to implement the new schedule unilaterally .' It would appear from the evidence before us that the parties never discussed potential liability for the period between the filing of the grievances and the implementation.of the new compressed work week agreement (Fx 5) ,on September 10, 1984. In a letter to the bargaining unit members Idated April 23, lY84 (Ex. 8) Mr. Rafter stated the following regarding liability: Undsrstandably, the employer intends to limit his liability under these grievances. To do'so, he is prepared to implement the shift schedules which have already been posted in the institution. With the implementation of that schedule, the employer's liability .will not continue to increase. However, your executive believes that the implementationof that posted schedule will harm our ability to negotiate a decent shift schedule. TO get the time to negotiate a shift schedule we want, we must provide the employer with a method of limiting his liability. Attached you will find a document entitled . ! ‘C __ _.... ._._.. .~._. ._._..._..._., .,.: “‘,,, ._. ._, ..~... .,. . .._..... _. .___4 L....... -- El Moritorium on Liability. This is an agreement between you and the employer whereby the employer's liability will be stoppedfromincreasing during the period specified. This is an individual agreement only. .You will note that it is specifically precludsd from applying to any other grievance. The decision to sign it is an individual one. It is up to you. Your executive urges you to do so because the moritorium offers the best possible circumstances under which to negotiate-a shift schecbile. Failure to obtain your agreement on the moritorium will simply result in th employer implementing the posted shift and stopping his liability anyway. The document referred to in the letter (Ex. S) is reproduced below: MCXUMRIUM ON LIABILITY Without prejudice to my grievance that I have not been paid overtime for the hours of work in excess of 40 hours per week, I.agr,ee to a moritorium on the employer's liability under this grievance fortheperiod of May lst, 1984 to June lgth, 1984 inclusive, for the purpose'of allowing a .neV shift schedule to be negotiated. Should a new shift not be agreed'upon and implemented by the expiry date of the moritorium, the 'employer's liability will recommence on June l&h, 1984. It is understood that this agreement applies -to my grievance only and in no way affects any other grievance filed by any other employee, Name (Print) Classification Signature Date I agree to the terms of the Moritorium 2 Liability outlined above. William Taylor Superintendent Date Guelph Correctional Centre Approximately sixty-eight employees did sign the above forms, and ‘- .: ..,.. ,. ;‘.. i,. _ _,_..._c.__ . .._...-- ....~.... ..~. .~---- ., ,.. .~. .~~‘,... .~~ .,.. .: _.__-._ 2 ..___A ..A- A-.., 9 the Union delivered them to hr. Taylor. Mr. Taylor did not execute ,any of.the documents. He testified that he never struck an agreement with anyone, including the Union, about liability.~ He al& said that he. was concarned about potential liability and sought advice about the scope of liability from within the Ministry. The agreementwhichtheparties reached (Ex. 5) is silent concern&ng any~liability for the period before thenew shiftschedulewas implemented. nr.Raftertestifiedthatin the course of negotiating that agreement the only discussion with the employer concerning its ongoing liability was to the effect that the -. sooner the agreement was signed the sooner the employer's liability would end. . The grievance claims $5,000.00, which the grievcqsays is overtime owed&him for the period since the Exhibit 2 schedule was in force. His calculation was based on the fact that in each,forty-nine weeks workedhe would have worked three days where he claims to have been entitled to one and one-half'tfmes his regular rate for all hours of those three days. That is, he claims to be owed twelve hours extra pay for each seven week cycle and eighty-four hours pay,for forty-nine weeks. He said that he'applied the appropriate rate for each year claimed and then discounted his claim by 258 to take into account vacation time and time when he was seconded.to a position where.he uorked Mondays to Friddys for a period in 1991. The following collective agreement provisions were referred to by the parties in the course of their submissions: 7.2 SckisDULs 4' and 4.7 The,normal hours of work for employees on theses schedules shall be forty.(40b hours per week and eight (8) hours per day. .c i:; 7.6 8.1 13.1 10 It is understood that other arrangements regarding hours of work and overtime may be entsred into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model agreementwithrespectto compressed work weak arrangements is attached as Appendix 4. There shall be two (2) consecutive days off which shall be referred to as scheduled days Off, except that days off may be non- consecutive if agreed upon betweenthe employee and the ministry. The overtime rate for the purpose of this Agreement &all be one and one-half (l-1/2) times the amployee's basic hourly rate. I '. The union's position is that the schedule worked by the.grieVor as ._ a Correctional Officer 2 (Ex. 2) is,in violation of Articles 7.2 and 8.1 of-the collective agreement since on occasion it required the grievor to work more than forty hours per week and deprived him of his right to. have two consecutive days off per week.. The Union relies on the decision ,of this Board in Kerr (supra) and say: that,there can be no doubt that, in general terms, the schedule violated the collective agreement. The only issue which theunion says canbe outstanding is the period of time over which the grievor can claim damages for the breach. The union points to the continuing discussions between the parties about schedules as showing that there had always been controversy about the schedules. It also points to the fact that there was never any discussion or agreement concerning potential liability once the grievance was filed, even though it was apparent that Mr. Taylor was concarned about potential liability. As its primary position the Union seeks damages for the period from 3anuary 1, 1979 until September 10, 1964, when the schedule (Ex.2) &as in force, and relies on Ontario' Public Service EmDlovees Union and The --- 11 Crown in Right of Ontario, (19M5) unreported (Ont. Div'l. Ct.), and& -- Clarke Institute of Psvchiatry- and Ontario Nurses’ Association (1982), 5 L.A.C.(3d) 155 (Beck) as support for the proposition that where there is -a continuing breach of the collective agreement damages can be awarded back to the commencement of the breach even though that occurred before the effective date of the collective agreement in force at the time that the grievance was brought In anticipation of the Employer's position that the Union is estopped from claiming damages for the period between 1979 and February, 19U4, the Union argued that it would be necessary to show that it waived its rights under the collective agreement and that there is no clear representation to that effect. It referred us to Re CIP Inc., container Division and'canadian Paoerworkers Union, Local 343 (19831, 11’ - -- L.A.C.(3d) 375 (Hinnegan), and submitted that it is necessary to'show that there was some intention to alter the legal relations and that that was impossible at the time of the vote on the new schedule because the Union was not aware of its legal rights. It also argued that the continuing discussions about schedules underlined that there.was no clear intention to alter the legal relationship. It also argued that if the Employer relied on the fact that no grievances were fixed, then the Employer should’have specifically raised the. issue' with the Union in view of the ongoing discussions and discontent with the schedules. In connection with this the Union referred us to E Lonqvear Canada Inc. and International Association of Machinists,LocalLodge~ (1981), 2 LA.C.(3d) 72 ‘(P. Picher). As an alternative position, theUnion submittedthatthe grievor should be entitled to damages from 1980 onward. It is agreed that, even il_ ‘./ J ,. ,, ., .._.... _.-:. ,.._ .- .-.-- -“-:.- - _. . .~ -.... .-. _. 12 though the collective agreement contemplated local arrangements regardinghours of workbefore 1990, in 1980 the parties appended~the first model compressed work week agreement to their collective agreement, and the Union argued that it can be concludedthatin 19c)O the parties contemplated that a more formal arrangement was required for: a compressed work week. It argues that the Employer was put on notice from that time on that if it was seeking to rely on past practice it had to specify in writing that it believed there was a waiver of collective agreement rights or enter into a more formal agreement as contemplated by the collective agreement. * As a fur+her alternative,the Union argued that the Employer should he liable for damages beginning in the summer of 1983, which is the earliest time that Mr. Taylor says that he was aware of the decisionin ,Kerri The Union asserts that this is a reasonable time for any estoppel to end since Mr. Taylor should then have been aware of.the need to . indicate to the Union that he was relying on all that had gone before to his potential detriment As still a further alternative, the Union asserts that the estopped was brought to an end when the grievance was filed. It characterizes the grievance as notice that the estoppelhas come to an end and that the damages should then flow from twenty days.before the grievance was filed, in accordance with Article 27.2.1 of the collective agreement which provides atimelimitoftwenty days after an alleged breach in which a grievance,must be filed. It asserts that there are two different situations whennotice.is used to bring estoppel to anend. One is where there has been a course of conduct in which bothparties actor to which they consent, and the other is.where there has been a failure to enforce fhe strict term8 of the collective agreement through . . .._ . .._. _ ._.,_ _~... ,_..,_. L.:. .‘2.-.i ;... .._l. _ _ - ,._ ,._. .._ : I. .I-,. ._~.... - ..~-.-- ., _-.----. ,p. “. 13 L error or inadvertence. It argues that the latter situation is what migbtbe seen to have occurred in this case and that in such a situation' the party grieving can revert to its strict legal rights during the life of the collective agreement and claim damages from the date of the grievanca As support for the argu!iient we were referred to the decision ias Domclas Ltd. and United Glass and Ceramic Workers, Local 203 (19dO1, 26 L.A.C.(ZdJ Y4 (Burkett). The Union also arguedthatthere was never any agreementreached between the parties concerning limitationof liability and that the '\- Employer cannot now claim that there was'such an agreement. It argued ~ that even if the Employer negotiated in good faith to reach an agreemen,t about compressed work weeks, neither its conduct after the grievance was filed nor the fact that an agreement was reached would be sufficient to bar liability without an express agreement to limit liability. The Employer argued that the Union was estopped by its conduct from claiming any compensation for any period before the, grievance was lodged. It argued that the evidence shows that the schedules voted on for implementation in January 1979 were all submitted by,the Union and that the EmplOyer gained no advantage in any way from the employees' L. decision regarding which schedule to implement. It also argued that the discussions which took place after 1979 were all concerned with matters oiher than the pattern of days off, revolving around fixed shifts, partial rotations, etc., and that despite the apparent unhappiness there was never a grievance filed which alleged aviolation of Articles 7.2 aad~8.1, which are the only places in the collective agreement which provide substantive rights regarding work schedules. It argued that the Kerr decision was not relevant to the facts before us because if _x . . i -. : .i i i :; .,, ,. :.. -. . ::...i ..,.-- ‘_., ‘. . ,., ._., _,_. . ,..,,__, ,,,. .._ .,_, ,,,. ._ ,,, .._... . . . I’.. . . . . . . . . ..AAL 14 involved a schedule which had been imposed by the Employer rather than I one which hadbeen agreed to by the Union. It also argued that~it is difficult to believe that the griever was unaware of the contents of the collective .agreemeat in view of his Union office. In short, its position is that since the Employer introduced the schedule which was violation of the collective agreement for many'years,thereafter, and since the grievor and the Union musthave been aware of their rights under the collective agreement for many years before the grievance, and since the Employer relied on this silence for many years to its detriment, the Union cannot now claim that there was a violation and that it is entitled to compensation for any period before the grievance. The Employer referred us to Canadian Labour Arbitration (2d ed.) (Brown 6 Beatty) at pages 81 to 87 and pages 101 to ,103; m (GSB Pile 105/B3)1 SmoRy River CoalLimited<United Steelwarkersof America, -- Local 7621 et a1.~(1985), 38 Alta. L. B.(2d) 193 (C.A.)I Chancoor (GSB ---- File 526/82);. and Schmid (GSB File 575hUl. The Employer also argued that estoppel should apply for the period from thetimethatthe grievance was lodgeduntilseptember 10, 1984, when the new schedule was implemented. It submitted that estoppel could be put to an end by notice aadthata grievance couldbe such a notice; hoewever, it argued that one or a number of individual grievances were not sufficient to do that, andthatthe only way in which to bring the estcppel to an end was by means of a Union grievance. In any event, it took the positionthatwe must determine a fair andequitable way to end the estoppel raghe and that it was both unfair and inequitable to eqect a long-standing shift arrangement to end overnight. It pointed to the Union's own evidence which suggested that it might take four .~ ,~.~ . . ‘_. ,. ; .‘,~ -:. ~ ,. -.. _.__..... . :.. -.,. - .._ ,_.. ., ,_.... __~_..- ..- :: ..-._ . . 15 / months to accomplish a schedule change. It also argued that it was unfair to hold the Employer liable in any event since the Union proposed negotiating changes and the Employer agreed to do so instead of exercising itslright to implementa shift change unilaterally. The Employer pointe!d to the fact that there was no evidence to suggest that it had been engaged in any~conduct which had.unduly delayed either negotiations or! the implementation of the new schedule. In support of its position itrreferred us to the Smokv River case (supra)i wmond (GSB I Pile 377/82); Ad O'Connell (GSS File 340&i), and asked us to conclude that since the parties agreed to bring the estoppel to an end by ! negotiating a new schedule it would be unfair to p&Use the Employer and that we sh+ld hold that the Union .started another estoppel by engaging in ne&iations. I The Employer also arguedthatthe shift schedules which were in force from 1979 to September, l9S4 complied with the collective :r. agreement. It~submitfed that Article 7.6 does not,provide that the arrangements had to be written , and that it cannot be concluded that the parties intended that.all arrangements had to conform to the model I agreement afteri 1900. It argued that the parties agreed to another form Of arrangement,in agreeing to a Vote and the implementation of the schedule which! received the most votes, and that there was neither I trickery nor ba!!I faith involved in the arrangement It submitted that / the essence of the Iterr decision is that the unilateral imposition of a schedule which violated the sunstantive rights in the collective agreement.is.in violation of the collective agreement, but that the agreement to such a schedule is not We were referred to the decision ' in Glenny (GSB File 317/83). L- ‘L. i. 16 In determining the facts in this case, we must note that the one substantial area of disagreement was .concerning the origin of the schedules which were submitted to the bargaining unit members for their vote in 1970. Mr. Taylor was clearly of the view that the schedules hadbeen submitted by bargaining unit members andthathe considered them, along with all other proposals , simply to determine if they would provide him with the coverage which he determined was essential to staff theinstitutionadequately for sevendays a week, twenty-four hours a day. he was also of the view that the Union had agreed that the schedule which would be implemented was the one which received.tbe most votes. Mr? Barber was equally clearly of the view that the schedule proposals originated with Mr.Taylor andthatthe Union was not happy with any of them but agreed to submit them as the -best of a bad lot".' +aviag that aside, and we concede that there is no legitimate way of resolving that dispute between two witnesses who both appeared ti be credible, we are faced with a situation in which a particular schedules has been in force since 1979 and in which no grievances about any possible violation of the collective a9reament were filed until early in 1984. Further, there is evidence of least some meastire of consultation and co-operation between the Employer and the Union regarding the formulation of schedules. The language of Articles 7.2 and B.l,are certainly clear enough to indicate that any schedule which rsquired more than five eight hour working days in a week and which didnotprovide for two consecutive days off in a week were a violation of the collective agreement. As the panel of this Board in I(err pointed out in 198)1, a schedule such as the one the grievor worked since .1979 &es not comply with the collective agreement no matter what day of the week is determined to be the start of the week. 17 We will accept for tbe sake of argument that in- the panel had before it either ~a schedule which was unilaterally imposed by the Employer or one where there was no evidence of aqy agreement or alleged agreement or arrangement brought forward. That does not alter the essence of the decision which is that, unless an agreement or airangement can be proven; such a schedule violates the collective agre-t. In the case before us, regardless of whether we would consider the regime in force from January, 1979 an "other arrangement" within the meaning of Article 7.6, we are faced with's situation wheretheunion knew of the shift schedule system being used, must be taken to have be& cognizant of the long-staading,terms of the collective agreement regarding hours of work and days off;and agreed to allow its membership to be polled in order to determine wbich.shift arrangement would be put into effect; It also agreed with the Employer that the scheduling arrangement whiCh garnered the most votes would be the one which would be'implemented. We consider that the evidence is sufficiently clear to allow us to conclude that the disagreements which the Union may have had with the proposed schedules put forward for the purpose of the vote, or which it later expressed to the Employer, were not explicitly concerned with making the shifts comply with Artides 7.2 and 8.1 of the collective agreement until the grievances were filed. In reaching our conclusions, we have considered the submissionsof the parties and have read and considered the authorities which they .citedto us. Oathe basis of the facts before us we consider that the Union should be estopped to some extent from retroactively pursuing a claim for damages arising out of an apparent violation of the collective agreement which it allowed to exist for so many years in the face of . 18 clear laquage of the collective agreement , and especially which it allowed to exist after 1981, when them decision was handed down. On the evidence before us, we cannot conclude that the Union ever . communicated to the Employer that it believed that the schedules violated the collective agreement Despite the Uni,orCs communication of its dissatisfaction with the schedules, there was never any indication given'to the Bmployer that the dissatisfaction was based oa.any belief that the schedule in place was one which breached the U.aion's rights under the collective agreement The Union's agreement that the schedule whichwoat~hemostvotes couldbe implementedbegianiag in 1979, together with its failure to assert that it considered any or all of the schedules~ on the ballotto be in violation of the collective agreement, is ia,our view, at the very least; a representat&on by condu?t to the Employer that it could safely implement the schedule which met with the appropal of the employees in the bargaining unit as evidenced by the vote. To retroactively deprive the Employer of the benefit of such a representation at this stage, when it has effectively been led to believe that its schedule complied withan arrangementreachedpursuaatto the collective agreement and therefore did not generate overtime liability, would be extremely unfair. Therefore, rigaidhss of whether or not we have the jurisdiction .to award damages for any period which predates this collective a9reemeat, we consider that, given the facts in this case, we should not do so and that the.Uaion should be estopped from claiming damages starting in January, 1979. We will therefore confine &r discussion to the appropriate time when the claim for compensation should commence, if we determine that such a claim can be~maintained. . . .I .~. __.__.__ :. .._... _-_..~~.- -..... ~_ .._..__ L _._ :_~ ____ __-.. ~_.i’..,._ :. ,.. . . . . . . . .-.. -~....- -- L--.,-L .__-- . . . >9 In a continuing grievance situation where the collective agreement contains time limits which cannot be varied, as this collective agreement does, it is pot really necessaryto consider the doctrine of lathes because the collective agreement defines delay in setting the time limits. In an ordinary continuing grievance situation, where there are mandatory time limits and where thsre is no discretion to vary those time limits, the usual practice would be to limit recovery to begin on the day that the time limit would,be considered to have started to run. S'iace.this collective agreement provides that any grievance not filed within twenty days of the day then event complained of came to the attention of the griever is untimely, then the earl,iest that .the imployer could be held liable in a continuing grievance situation would be tuenty days prior to the date of the filing of the grievance. All coatinuing.grievances which arise outside of the collective agreement time' limits for bringing grievances are, by definition, grievances which have persisted for some time and which have not been brought to the attention of the Employer immediately upon their having arisen. They all involve some element of silence on the part of the . Union and/or .the grievor. This silence might exist in a situation where the Employer knows that it is in violation of the collective agreement but is taking its chances, or where theEmployerbeliaves that it has doaenothingthatviolates the collective agreement. In this case wa are faced with the latter situation, since we haveaoreasoato doubt Mr. Taylor's evidence that he believed that he had an arrangement with the lOCal Union regarding~the shift scheduling ,which.existed even aftar thee decision. However, unlike the usual situation, where there has merely been silence in the face of a continuing violation of the Collective agreement WithOUt any other conduct on the party seeking to . . enforce its rights, in this cassthere has been conductonthepartof the Union, such as co-operation in the various votes taken about shifts and the contiduing discussion about shifts without indicating that it consideredtheEmployertobe inviolation,which couldreasonablybe interepreted by the Employer as indicating that there was in fact an arrangement or oral agreement regarding shift scheduling Mr. Taylor testified that he considered that he had an oral agreementwhichcould be terminated by the Union without notice. Be also testified that he considered that the filing of the grievances terrqinated the agreement, and his conduct certainly has been consistent with that position. We also note that where an estoppel has been found to o&erate to prec&ude the retroactive enforcement of strict collective agreement rights, the grievance is always talcen as notice of the end of the estoppel and the rebarsion to the collective agree.ent rights. We therefore consider that in either case there would be no claim for any period before the grievances were filed and that in this Ease it iS appropriate to limit any claim for compensation to begin on the date of the ,grievance. 'Before turning our minds to the other issues,raised, we should state that on these facts we cannot find that the Employer was under any obligation to raise the question of its reliance on what it considered to be an "arrangement" or oral agreement with the Union before the grievances were filed. The Employer's evidsnce was that it considered that it had not unilaterally imposed any schedule but that all schedules were implemented after consultation with and by agreement with the Union. There were ongoing discussions abou,tchanging schedules, and at no time did either party understand that the discussions'prior to lYY4 L. were necessary because the schedoles'had to bs made to aOmply ,with the strict words of the collective agreement. In short, we do not consider that tb.is,is the sort of situation to which Ms. Picher was adverting~in the Lonovear case at page 81 which, in any event, appears to deal with a situation in .which forebearance in negot,iations for a collective agreement is bsing considered. We note the Employer's argument that the grievance Of any one or more employees would not be sufficient to bring any estoppel to an and; however, we do notacceptthatposition in this case. Such aposition is contrary to the evidence concerning the Bmployer's understanding of what was happening when the grievances began to come in with the encouragement of the Union. Quite clearly, Mr. Taylor knew on or before March 26th at the latest (when he wrote Bxhibit 6, pages 37 and 38) that . he.could no longer rely on any arrangement which he thought he had with the Union. Inview of our findings,.the question of whether or'notthere was an Qrrangement" within the meaning of Article 7.6 is not really of any significance in terms of 1imitAng the claim for the period prior to the filingof the grievance. The Employer has argued that it always has' complied with the collective agreement in its scheduling because it had an "arrangement" within the meaning of Article 7.6. As noted in the Glenny case (supra) Article 7.6 provides a framework for agreeing to modify the collective agreement Although the Employer argued that such a modification did not have to be in writing in order to comply with Article 7.6, we wonder whether an agreement to amend the collective 'agreement can,be oral when them Emnlovees Collective Bargaining= provides that a collective agreement must be in writing. In any event, we consider that the conduct of the Union was such that it constituted a . -C *: - 22 _I representation to the xmployei that there was an agreement about sche~dulingto the effect that scheduling after consultation and votes would not violate the collective agreement, and that the Employer relied onthatrepresentationto its detriment by continuing to implement a schedule which it thoughthadbeen arrivedatwiththe consent of the Onion. Whether thsre was an varrangement" or an estoppel operating, the Employer is not held liable during the life~of either the "arrangement" or the estoppel, and the result is the same regarding liability for conduct up to the date of the grievanc&- ,It is our view, however, that the characterization of these facts as giving rise to an estoppel is more consistent with the evidence which we heard, since there was no evidence before us of any express oral agreemsnt which was specifically intended and understood by both parties to vary the collective agra-t. .The evidence before us.is clear that a schedule which complies with the collective agreement cannot be devised and implemented overnight. We have hadestimates whichvary between one andfour months asbeing required to enable the Employer to comply with the collective agreement. The compressed work week agreement (XX. 5) which the parties entered into allows for four weeks notice of termination. We accept that both the evidence and common sense about the nature of schedules dictates that some period of grace to enable compliance with the collective agreement would be reasonable. Therefore, while accepting that the estoppel has been brought to an end by the grievances, we would not allow a claim for compensation until after the expiry o.f such a reasonable notice period, which we consider could span from one to four months. . . 23 ,Tbe evidence before us is clear that, while the Union attempted to obtain offers of immunity from liability during a period when negotiations about schedules were keirgheld: the Employer did not accept those offers. Further, eventhoughthe Employer was concerned about liability running once it knew that the former regime had been brought' to an end, it did nothing to obtain any agreement concerning potential liability upon enfering into an course of negotiations with the Union., The Employer had it in its hands to limit its liability by unilaterally imposing schedules; it chose not to exercise this option. It gave up its opportunity to limit its liability without obtaining any promise from the Union about limiting the claims for liability, even though both the Union and the,xmployer were turning their minds to the question of continuing liability. The Employer did not even discuss the matter : with the Union, and certainly there is no evidence of any representation on i&part of Union that Go claim for compensation would.be made once negotiations started. Under the circumstances, we do not believe that it would be appropriate for us to grant the Employer the protection which it should have taken care to get for itself. For all of the reasons setoutabuve, we find that the schedule worked by the griever from 1979 to September 10, 1984 (Ex. 2) is ,in violation of~Articles 7.2 and e-1 in that it provides for some weeks when the grievor had to work more than five days and when he did not have ~two consscutive days off. As a consequence, some claim for overtime pursuant to Article 13.1 is appropriate. We further find that the Union .is estopped from claiming any compensation for overtime for the period up to the date that the grievance was filed and the estoppel was brought to an end. we also findthatthere should be no,claim for compensation for a reasonable period after Me date the grievance was I . . _ ‘. ., -- -:--+.. .,_ _. __ _.___, _ _--... --. .-‘-‘.. _......._. -_.-. _..I.. .,. .-... _..- ,. .__ _- _._e_.__ .._._: _,..,_,__,: _,__. ‘: ____M& l . 24 filed to allowfor time for new complying schedules to be implemented, We will leave it to the parties to agree on what such period should be during their discussions concerning compensation, and we will remain seisedof.that determination as part of our retention of Jurisdiction to determine compensation should the parties not be able to agree. Therefore, we award compensation for the period from the expiry of a reasonable period of'time fo? compliance followingthefilingofthe grievance to September 10, 1984. By agreement of’the parties we are to ramaia seized of the matter for the purpose of determining the amount of that compensation if the parties are unable to agree,and we do so! however, we shouldnotethatin allowingthis grievance andthe claim for compensationtothe extent that we have we should not be taken as having endorsed the grievorfs method of calculating his claim. nlqEoATLcx4oou. WZARIO TSIS 18th OAX OF December , 1986. : .Q3~ '7211cfi G. Brent, Vice-Chairman T. Traves, Member W.A. Lobraico, Membar