Past practiceEstoppel What you should know Saturday May

Past practice/Estoppel: What you should know Saturday, May 30 th, 2015 1

Past practice: Two ways Past practice, as the words suggest, implies a practice that has been used in the workplace for some time. Arbitrators can accept the past practice argument in two ways. The first is ambiguity. • The collective agreement is ambiguous and arbitrators can use the conduct of the parties to clarify the ambiguity as a way to determine what the parties meant when they negotiated the agreement. • In this case, there needs to be an ambiguity, or a term that could have more than one interpretation. Examples of ambiguous words or terms include days, working days, etc. 2

Example Re Le. Bouthillier, 34 N. B. R. (2 d) 703 (New Brunswick – 1981) The grievance was dismissed based on the fact that there was no ambiguity in the collective agreement to make the past practice evidence admissible. In that specific case, the Union had submitted that because the employer provided Mr. Le. Bouthillier with a vehicle for over 10 years, the employer was bound by past practice to continue supplying the vehicle and could not change the practice unilaterally. The arbitrator said that past practice did not apply since there was no ambiguity in the collective agreement (see paragraph 14), and furthermore, also added that there was nothing in the collective agreement which allocated a vehicle to employees and no undertaking by the employer at any time that existing conditions would be maintained. Remember, arbitrators will look at the context of the word or term, and the agreement as a whole. Documentation is important! 3

Past Practice: 2 ways Arbitrators can also accept a past practice argument linked to the concept of Estoppel. No ambiguity needs to be demonstrated, but one of the parties has to show that a practice has been in use for so long, that the parties are "estopped" to revert to the language of the collective agreement. Even if the language of the collective agreement is clear. Estoppel basically is the suspension of legal rights and is a equitable doctrine to prevent unfairness. One party was led to believe that strict rights would not be enforced, and it would be inequitable to revert to the strict rights being enforced. To be distinguised from management rights! This estoppel can end, and it usually does when the parties re-negotiate their collective agreement, as long as they discuss the particular practice/language of the agreement. Estoppel can work for the Union, or against the Union, and this is why it is of great interest for Union Activists. 4

Example N. B. U. P. P. E. v. Atlantic Provinces Special Education Authority (2012) The Union filed a grievance because the Employer did not add any amount for vacation pay or benefit allowance to the overtime paid. Issue: is the practice of the employer in compliance with the terms of the collective agreement, or does it violate these terms. The Union submitted that the language was clear and that the past practice argument was not helpful. The Arbitrator disagreed. He concluded that two separate terms (“gross salary” and “gross earning”) constituted an ambiguity. The arbitrator said that the past practice of the employer was not to add any amounts for vacation pay or benefit allowance to the overtime paid. The conclusion was that the Union had agreed to the practice of the Employer because it had been the practice before 2007 and the Union did not disagree until the filing of the grievance in 2010. The Union was estopped from raising the grievance. 5

Example 2 NBUPPE and Facilicorp. NB (2015) In that decision, the Union was asking for payment of the overtime rate for travel time. The Arbitrator decided that the language of the educational leave specifically used the word “regular salary” which, in his opinion, excluded the overtime rate for travel time. Nonetheless, the arbitrator also said at paragraph 68: “In relation to past practice, the employer’s witnesses were clear on the existence of a past practice consistent with the employer’s response to Melnick’s grievance but provided no specific details. Union witnesses were equally clear that travel time claims have been a recurring concern of bargaining unit members but also provided no specific details. Putting the two together, one is left with a past practice and employee concerns without formal complaint until Melnick stepped forward in 2013. By then, estoppel was a factor”. What becomes clear from the case law: ◦ Even though the Union might not be aware of a practice, if employees are, or union activists, the arbitrator can assume the union should have known about the practice ◦ If a practice of the employer seems unfair or in violation of the CA, call your LRO. 6

Can past practice/estoppel end? If it is decided that estoppel applies, yes, it can come to an end. Usually, it will end once the parties renegotiate their collective agreement, as long as they address the issue. • Another way to end a practice is to give notice of the intention to revert to the strict terms of the collective agreement. • In other cases, the notice may come with the filing of a grievance, but that would be in rare cases. • But: when a practice goes against Human Rights Legislation, or another legislation, the past practice argument won’t stand. 7

What the case law says What the Facilicorp. NB decision and other case law teaches us is that when the employer and the employees agree to a practice for a long time, the Union may be estopped from reverting to the language of the collective agreement. To use the estoppel argument, the practice has to be clear, a party must have relied on it, and it would be unfair for that party to suddenly revert to the language of the collective agreement. Estoppel founded on past practice can apply in a variety of circumstances: ◦ Not requiring compliance with the time limit for filing a grievance; ◦ Not paying a shift premium; ◦ Overtime ◦ Calculating seniority 8

What does this mean for Activists and the Union Vigilance is required from our activists so when there is doubt about the employer’s practices, it should be brought to the attention of their LRO so a decision can be made as whether or not we should grieve. • Since our activists are the Union’s eyes and ears in the workplace, their input is needed to ensure the collective agreement is followed and avoid any violation of the collective agreement. • For the Union, it is important to know what happens in the workplace for several reasons: Negotiate a Collective Agreement Ensure our members understand the Collective Agreement and don’t necessarily agree to all employer’s practices. 9