SHP 592

AWARD

ARBITRATOR
D. P. Jones, Q.C.	Sole Arbitrator
REPRESENTATIVES OF THE UNION
John Moore-Gough	CAW National Representative
Bryon De Baets	President, Local 100
John Burns	Vice President, Local 100
Rob Martin	Observer, CAW Lodge 448
Burt Wilson	Observer, CAW Lodge 448
REPRESENTATIVES OF THE COMPANY
Doug Fisher	Director, Labour Relations, Montreal
Ross Bateman	Senior Manager, Labour Relations,
	Toronto
Patricia Payne	Manager, Labour Relations, Edmonton
Louie Timoteo	Manager, Locomotive Reliability
	Centre, Edmonton
Ray McDonald	Director, Transcona, Winnipeg

HEARD at Edmonton, Alberta on 29 November 2004. AWARD ISSUED at Edmonton, Alberta on 5 January 2005.

I. JOINT STATEMENT OF ISSUE

The parties have submitted the following joint statement of the issue:

On or around June 1, 2004, Company officers across the system began informing employees of company expectations concerning, among other things, end of shift wash-up time. The Company advised that thereafter employees would be permitted 5 minutes to wash-up immediately prior to the end of their shift. The employees were given a grace period and coaching regarding this change, and the employees were advised that after the coaching period, employees would be disciplined for any violations of this policy.

It is the Union’s contention that the aforementioned policy is in violation of Rule 1 of Collective Agreement 12 between the parties. The Union also contends that the Company is estopped from introducing such a policy, as consistently and traditionally ten minutes was allowed at the end of the shift for wash-up. Further at certain locations there are local agreements in place that govern the duration of wash-up and other items that bind the parties and the Company is in violation of those local agreements. The Union maintains that the above policy is an unreasonable discipline policy.

As settlement the Union asks that the Company’s policy on end of shift wash-up as introduced on or about June 1, 2004 be declared null and void and that any discipline assessed under this policy be expunged. The Union also asks that any employee who has lost time as a result of this policy be compensated for such lost time.

The Company argues that the issues raised in the Union’s policy grievance do not relate to any Rule or benefit contemplated by the Collective Agreement. The Company posits that the Union has failed to identify the particular Rule, or paragraph of the Rule that has been violated. The Company does not believe the matter is arbitrable. In the alternative, the Company argues that matters such as this, fall within management’s rights and its actions were reasonable and proper, for the legitimate purpose of ensuring consistency in the workplace. The Company contends that the Union’s policy grievance is without merit and requests that it be dismissed.

II. SUBMISSIONS FOR THE UNION

The Union submits that the Company is estopped from making unilateral changes to the

wash-up periods. Although Rule 1 of Agreement 12 does not specifically provide for either

the 10-minute wash-up periods or two 10-minute coffee breaks, the Company has provided

them for many years—through at least 12 renewals of the collective agreement, spanning approximately 40 years. The Union says that the Company should have provided it with notice during the last collective agreement negotiations if it wished to make changes to any of these long-standing practices; the Company did not do so; its silence has prevented the Union from negotiating to prevent any change to these practices; and the Employer is now estopped from changing the practice of allowing 10 minutes to wash up, at least for the duration of the present collective agreement. It relied on Arbitrator Springate’s decision in C.H. Heist Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 866-0 (Benefit Grievance) (28 July 2003 at paragraphs 35and 36) for the proposition that arbitrators have generally ceased using the shield/sword analogy to limit the availability of the doctrine of estoppel, which should rather be applied in broader equitable circumstances:

Notwithstanding the Elan Tool case [decided by Arbitrator Weatherill], the arbitration awards referred to by the parties indicate that arbitrators have generally ceased using the shield/sword analogy. Rather they have asked whether a party made a representation that it would not enforce its legal rights and, if so, whether that representation was detrimentally relied on such that it would not now be inequitable to allow the party that made the representation to resort to strict legal rights under a collective agreement.

[Emphasis added.]

Secondly, the Union submitted that, in any event, the Company cannot unilaterally alter local agreements at various locations across the system (such as Kamloops and the Walker LRC in Edmonton] which specifically provide for 15 minutes of wash-up time (more than even the previous 10-minutes).

Thirdly, the Union maintains that the Company’s new policy of a 5-minute wash-up time is unreasonable, both because of the shortness of maximum wash-up time allowed and because the new policy leaves the actual amount of wash-up time to the discretion of each supervisor (which may be arbitrary). As a result, any discipline flowing out a breach of the new policy would be set aside under the K.V.P. principle.

Finally, the Union noted that the parties agreed on 14 March 2004, after the new collective agreement was signed, to “reinstate the discipline system and standards that were in effect at the commencement of the previous collective agreement, in accordance with past practice and jurisprudence”, and to resolve all outstanding discipline cases in accordance with that system and standard. The Union says that this means that there can be no discipline for employees washing up within 10 minutes of the end of their shifts.

III. SUBMISSIONS FOR THE COMPANY

Because Agreement 12 makes no mention whatever of wash-up time, the Company submits that any change to wash-up time cannot constitute a violation of the collective agreement, and therefore this grievance is inarbitrable.

Further, the Company says that the doctrine of estoppel has no application to the present case, because it has at no time made any representation to the Union that it would not change its practice of allowing employees 10 minutes to wash up at the end of their shifts (nor is there any evidence of any such representation). It cited Arbitrator Moreau’s decision in CROA 3456:

The essential elements of estoppel [are] as follows:

(1) a representation made by the Company either verbally or by conduct to the employee;

(2) an intention on the part of the employer that the representation would be relied upon by the employee;

(3) actual reliance on the representation by the employee; and,

(4) detriment suffered by the employee as a result of his reliance.

There is no evidence, to begin with that the Company represented to the Union either in writing or verbally that they would follow an exclusive practice of Conductor Only crew assignments. Nor is there the kind of clear and unequivocal evidence required as a basis for an estoppel that the Company, by its conduct, has represented to the Union that it will only use two person crews.... Overall, this arbitrator finds that there is an absence of clear evidence before me to conclude that the employer, by its consistent actions over the last eleven years, demonstrated to the Union that it was abandoning its right to implement full crew operations. Accordingly, the Union has not met the first requirement for an estoppel, that is, a clear representation that the Company would not resort to filling a crew consist on a consistent basis with a configuration which exceeds a two person crew. In the absence of any further contractual language which gives the Union the right to demand a Conductor Only consist, I am left with no other option but to deny the grievance.

The Company relies on the decisions of:

· Arbitrator Hickling in Eurocan Pulp & Paper Co. and Canadian Paperworkers’ Union, Local 298 (1 February 1090) for the proposition that the mere fact that an employer has afforded a benefit to employees for many years does not create an estoppel where the benefits were granted as a matter of grace; the mere existence of a practice does not constitute a right, and does not necessarily import a promise that it would continue to exist; the mere long continuance of a state of affairs is not a basis of estoppel, at least in the absence of an express commitment or evidence from which a commitment to continue the practice in force may be inferred.

· Arbitrator Brunner in Brewers’ Warehousing Co. Ltd. and United Brewers’ Warehousing Workers’ Provincial Board, (1985) 21 L.A.C. (3d) 327, who found that the employer’s unilateral reduction of a 15-minute wash-up period (which had been in effect for 16 years) to 5 minutes did not breach the collective agreement, and was within the management’s rights clause which the employer had never intended to waive.

· Arbitrator Weatherill in Elan Tool & Die Ltd. and U.A.W., Local 127, (1985) 18 L.A.C. (3d) 17, who noted the distinction between using estoppel as a shield to prevent the other party from relying on its strict rights under a collective agreement, compared to a sword to create rights which are not contained in a collective agreement.

· Smoky River Coal Ltd. and U.S.W.A., Local 7621, (1985) 18 D.L.R. (4th) 742, 38 Alta. L.R. (2d) 193, 60 A.R. 36 (Alta. C.A.), which expressly disapproved of the development in the law of estoppel contained in the Canadian National Railway case (1981) 128 D.L.R. (3d) 236, 34 O.R. (2d) 385 (Ont. H.C.J.).

The Company says there is evidence that it has from time to time previously changed its wash-up policy without objection from the Union, thereby indicating that the Union recognized that this policy was within management’s rights.

With respect to possible discipline arising from a breach of the new policy, the Company says that the policy is reasonable; clear and unequivocal; has been brought to the attention of employees, who have been notified that a breach may result in discipline; and it has been consistently enforced since it was introduced. Accordingly, the Company says that the policy complies with the K.V.P. principle.

Finally, the Company conceded that it is bound by any local agreements which prescribe the amount of wash-up time (such as at Kamloops and the Walker LRC in Edmonton).

IV. ANALYSIS

I have come to the conclusion that the grievance must be dismissed for the following reasons.

There is no explicit provision in the collective agreement which has been breached by the Company’s new policy limiting wash-up time to five minutes. Wash-up time is simply not dealt with in the collective agreement.

Accordingly, it would be necessary for the Union to establish that the Company is estopped from applying the hours of work provisions contained in Rule 1, which contemplates that “[e]ach shift shall consist of eight (8) consecutive hours, with an allowance of thirty (30) minutes for lunch within the limits of the fifth hour”: see Rules 1.3, 1.4, 1.12. In effect, the alleged estoppel would have to arise from a representation by the Company to the Union that it would not require employees to work the last 10 minutes of their 8-hour shifts in order to allow them to wash-up, notwithstanding the Company’s contractual right to have employees work the full 8 hours. Stated this way, the alleged estoppel does not constitute an additional right not covered by the collective agreement (“a positive obligation”), but rather an undertaking not to insist upon a provision which is explicitly contained in the collective agreement—so there is no issue in this case about whether estoppel can be used as a sword as well as a shield. However, there is no evidence that the Company ever made any representation to the Union that the existing practice would continue, or that the Union acted on such a representation to its detriment. As Justice Stevenson said in Smoky River Coal at p. 199 (Alta. L.R.):

I resile from the consequence that every practice, policy, concession or indulgence of an employer or a union will become part of the collective agreement. If, for example, the union and its members voluntarily accepted straight-time pay for reporting, they should not be bound to continue simply because the practice was not raised at the ensuing negotiation. Every practice in the workplace is not automatically to be elevated to a term of the collective agreement, freezing the parties to the status they had before each agreement.

... [T]he essence of the doctrine of promissory estoppel is that it is inequitable for the promissor to stand on his rights.... It is only “inequitable for a promissor to stand on his strict legal rights where the promisee has altered his position in reliance on the promise”. I am unable to see how the union or [the] employees were induced to alter their positions in reliance on the promise. The promise was to pay three quarters of an hour for half an hour of work. What the arbitrator fastens upon is the fact that the union did not raise the practice in subsequent negotiations: “... its reliance upon the practice caused it not to seek formalization of the practice in the collective agreement”. There is simply no evidence that the union failed to raise the subject at negotiations in reliance on anything the company had promised.... The arbitrator here erred in making the finding of inducement or “change of position” without evidence to support that conclusion.

In the present case, there is no evidence that the parties ever discussed the subject of wash-up time or the continuation of previously existing practices during the course of bargaining— there is no evidence that the Company did anything to cause the Union to fail to raise the subject at negotiations, or which would make it inequitable for the Company to exercise its management rights by changing the amount of wash-up time. Accordingly, I am left in the same situation as Arbitrator Moreau in CROA 3456—namely, that the essentials for an estoppel have not been established by the Union. Accordingly, the grievance must be dismissed.

In reaching this conclusion, I make no judgment about the amount of time which wash-up might reasonably take, nor about the wisdom either of the Company’s decision to change its longstanding practice of granting 10-minutes for washing-up or converting it from a fixed amount of time to a variable period which will be administered by each supervisor. The parties will need to address these issues at the next round of bargaining (if that is their will).

Finally, given that the collective agreement does not grant employees paid wash-up time and there is no evidentiary basis for finding an estoppel that would prevent the Company from changing the amount of paid wash-up time it unilaterally has granted to employees, it is not possible to say that the Company’s new policy is unreasonable within the K.V.P. principle. Of course, whether there would be just cause for imposing discipline in any particular case would have to be determined in light of the facts of that particular case if, as and when it arises.

V. AWARD

The grievance is dismissed.

SIGNED, DATED AND ISSUED at Edmonton, Alberta on 5 January 2005 by:

D. P. Jones, Q.C., Sole Arbitrator