International Union of Operating Engineers, Local 793 v. Employer Bargaining Agency and its Affiliate Comstock International Ltd.
File No.: 2200-81-M Date: June 30, 1982 Ontario Labour Relations Board
Before: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and M. A. Ross.
Appearances: E. A. Ford and M. Quinn for the applicant; G. Grossman, E. Woerner and H. Martin for the respondent.
Decision of the Board
1This is a referral of a grievance to the Ontario Labour Relations Board pursuant to section 124 of the Labour Relations Act. At the commencement of the hearing in this matter counsel for the respondent raised a priliminary objection. The Board heard the representations of the parties on this objection and dismissed the grievance for the following reasons.
2The grievance which is the subject matter of the referral relates to a job by the respondent, Comstock International Ltd. at Iroquois Falls, Ontario. The grievance alleges a violation of articles 2.1 and 2.2 of Schedule B of the Provincial Collective Agreement between the applicant, International Union of Operating Engineers, Local 793 and the respondent, Employer Bargaining Agency. That clause relates to commuting, transportation and travel expenses allowances. At the commencement of the hearing in this matter, counsel for the respondents took the preliminary position that the applicant was estopped from bringing the present grievance. The estoppel argument, which we shall go into more detail later on, was based upon an agreement by the parties as to past practice.
3The parties are agreed that there has been a past practice for employers, such as the respondent Comstock International Ltd., and other "local" employers, that when Timmins area residents are hired for Timmins area jobs they are paid their commuting pay such as mileage allowance and not board allowance from the Timmins area. This practice has been going on since at least 1978 and the language provisions on which the grievance is based have been in effect since 1978. The job at Iroquois Falls is some 40 miles from Timmins, and in view of the practice the respondent, Comstock International Ltd., has been paying $13.20 per day as mileage for the employees at Iroquois Falls. The position of the union is that the employer should be paying from the City Hall closest to the job site, and that City Hall should be Sudbury, which would be a distance over 100 miles which would entitle the employees to room and board of $29.00 per day. Although, clearly the union admits that there has been a past practice of dealing with the Timmins area as a local area rather than Subdury.
4Counsel for the respondent took the position that the past practice of accepting Timmins area residents on Timmins area jobs as local employees and thus paid commuting or mileage allowance to jobs in the Timmins area and not board allowance has been going on since 1978, and notwithstanding any clear language of the collective agreement that this having been the practice at the time the agreement in question was renewed in 1980, the union is now estopped from denying that area practice. In support of this argument, counsel for the respondent relied on the decision of the Ontario Divisional Court in Re Canadian National Railway Co. et al. and Beatty et al. (1982) 1981 CanLII 2953 (ON HCJDC), 128 D.L.R. (3rd) 236. In that case, as in the present case, the collective agreement being interpreted said one thing, but there was agreement between the parties that the practice had been quite different from what the language of the agreement indicated. Further, that agreement had been the subject of bargaining and had not changed notwithstanding the practice in question. At page 243 of the decision, Mr. Justice Osler found:
“Reflection and a perusal of many arbitration cases, including those to which the present arbitrator made reference, has persuaded me that the judgment in the Sarnia General Hospital case, to the extent that it doubted whether the principle of estoppel by conduct could arise in labour arbitration proceedings, was too sweeping, as well as going beyond what the decision of the case required. True, a collective agreement, like a contract, should be construed without reference to extrinsic evidence if it is clear upon its face. What the arbitrator did here, however, was not to interpret the agreement but to make a finding as to its proper application and to give consequential relief.
That finding surely fits within the principles enunciated by Denning L. J. in Combe v. Combe, cited above. By its conduct in persistently paying many classifications of employees from the first day of illness in the face of a clause providing for a waiting period, the company gave the union an assurance which was intended to affect the legal relations between them. The union took the company at its words and refrained from requesting a formal change in the agreement. The company should not now be allowed to revert to the previous relations as if no such assurance had been given.
The problem of getting evidence of such conduct before the arbitrator did not arise by virtue of the agreed statement of facts and issues. In any event, it is not necessary for our decision to review the whole law of evidence as it relates to arbitrators. We think the arbitrator was within his powers in applying the doctrine of estoppel. No jurisdictional error has been demonstrated and the application to quash should be dismissed with costs.”
5In our view, in the present case the Employer Bargaining Agency was in precisely the same position as the union in the above quoted case. Here, there had been a recognition of a special arrangement for Timmins by the union and this arrangement was considered clear enough that the employer did not question it in the 1980 re-negotiation of the agreement. For the union to come forward at this time and deny that arrangement would be precisely the kind of unfairness that the estoppel doctrine seeks to prevent.
6For the foregoing reasons, therefore, the Board dismisses the present grievance.