Amalgamated Transit Union, Local 1587 (Policy) v Ontario (Metrolinx - GO Transit), 2011 OGSB minicounsel 131

GSB#2010-1947

Union# G-16-10 Policy

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Policy)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Ian Fellows Green & Chercover Counsel

FOR THE EMPLOYER

Sven Poysa Osler, Hoskin & Harcourt LLP Counsel

HEARING

July 26, 2011.

Decision

1This case involves the application of issue estoppel with respect to certain pension contributions involving full time employees on short, unpaid, non-statutory leaves. (Leaves in Question)

2The Agreed Statement of facts are appended to this award.

3In essence, before OMERS corrected the existing situation, employees paid only their portion of the contribution for these Leaves in Question, whereas after the OMERS correction, employees were required to pay both their own and the Employer’s contribution if they wanted the pension service credit. However they could elect not to buy back this service and thereby avoid paying any contribution.

4Certain aspects of the OMERS plan are important to understand:

1. The OMERS Plan is imposed by statute on these parties. It is not collectively bargained. Therefore the parties have no input into the terms of the OMERS Plan.

2. Neither this Employer nor this Union is part of the joint OMERS Board.

3. The only relevant reference to pensions in the Collective Agreement is the sentence contained in the Wage Article ( 39.4(1) ) which states “ Pension contributions will be deducted on regular earnings”

4. The provision in question in the OMERS Primary Pension Plan is a publically available document, readily accessible to both the Employer and the Union.

5. OMERS changes its pension plan on a regular basis with the effect that the pension plan involving these employees could be changed without their consent and during the term of an existing collective agreement.

5The GSB jurisprudence on estoppel is clearly set out in Vice Chair Gray decision in Ministry of Health and LTC v OPSEU dated July 23, 2007 , reported at 90 C.L.A.S. 141, where he states the criteria for estoppel are as follows:

“This Board (differently constituted) described estoppel in Brown, 0513/86 (Barrett), at pages 6-8 (as quoted in Hawke, 870/90 (Fisher), at pages 3 and 4:

1. The Party with the contractual right makes a representation to the other party that it will not be insisting on strict compliance with that right. The representation need not be expressed but can be implied from the conduct of the party making it. The conduct gives rise to an estoppel only where it leads the promise reasonably to believe that an undertaking was being given.

2. The representation relied upon must be clear and unequivocal. Conduct which is ambiguous or subject to a number of conflicting interpretations cannot form the basis of an estoppel.

3. The promise must be one that is voluntarily given, not extracted by force or coercion.

4. The promise must be one which was intended, or was reasonably construed as being intended to affect the legal relations between the parties. A person may well grant an indulgence without ever intending to forego his strict legal rights. The promisor is not estopped from relying on terms which in the past have not been enforced through error or inadvertence.

5. The person relying on estoppel must show that he altered his position on the strength of the promise or representation that was made. An alteration of position may take the form of a positive act or that of an omission. It is sufficient the promisee has be induced to conduct himself differently than he otherwise would have done. Such conduct must be shown however to have been in reliance on the promise. In the labour relations context reliance may take the form of forebearing to raise an issue at the bargaining table which but for the promise would otherwise have been raised.

6. It must be shown that the alteration of position by the promisee was to his detriment or prejudice.

In essence the object of the doctrine is to prevent a party from acting in a manner inconsistent with an express or implied promise, when to do so would be unconscionable.”

6Looking at the first criteria, in order for the Union to rely on the issue estoppel argument they must first prove that they were led to believe that certain rights within the Collective Agreement would not be relied upon by the Employer.

7Where does this Collective Agreement deal with the issue of who makes the pension contribution for Leaves in Question? The answer is that the collective agreement does not mention or refer to this topic at all, nor does it refer to any of the myriad of complex pension issues in the OMERS plan. In fact the only reference to OMERS seems to be in Schedule B where the provision of retiree benefits are linked to receiving OMERS retirement income. This is understandable given that the OMERS regime was imposed by statute and therefore is not part of this collective bargaining arena.

8The one reference in Article 39.4 (1) about pension contributions being deducted from regular earnings simply does not come close to dealing with issue of who pays the employers contribution for Leaves in Question.

9The conduct of the Employer satisfies both criteria 2 and 3.

10The fourth criteria makes reference to the fact that the promisor (in this case the Employer) is not estopped from asserting those rights which were in the past not enforced due to error. In this case it is agreed that the application of the leave provisions was clearly done in error by the Employer.

11With respect to the fifth criteria, the Union cannot say that if it had known of this change that it would have negotiated a change to the pension plan, however it has said that if it knew that this change would save the Employer money, they would have negotiated some other way of getting that money back into the pockets of their members. This assertion makes labour relations sense. The sixth criteria would also seem to be covered.

12As summarized in the last sentence of the quote, the real point of the doctrine of estoppel is to avoid what would otherwise be unconscionable. Therefore, it is proper to ask whether or not the actions of the Employer are unconscionable, remembering the following matters.

1. The mistake in administering the OMERS plan arose from an innocent misunderstanding of the terms of the OMERS plan, which was equally accessible to both contracting parties. In other words these rules are set by a third party, not one of the parties to the Collective agreement.

2. The new rule does not cost employees any more money as they can opt out of its application. In fact, under the new rule the member can also avoid paying his or her side of the pension contribution by opting not to buy back their service. This would actually increase their take home pay. In fact only 2.5% of the members opted to buy back their service under the new application of the rule, and thus 97.5 % of the members opted to increase their take home pay.

3. This rule is of general application throughout the OMERS pension world, which, according to their website, have over 400,000 members. How could it be unconscionable to treat these 1200 employees differently that the 398,800 other members of the same plan?

13In conclusion I find that the Union has not established that estoppel applies to this situation as it has not established that it met the criteria set out in the GSB case referred to above and for the overriding reason that the result is not at all unconscionable.

14The grievance is therefore dismissed.