HomeMy WebLinkAbout1986-0619.Abriel et al.89-01-27EW‘OYESCE‘A COURONNE
CEL’ONTARIO
SElTLEMENT RiGLEMENT
DES GRIEFS
IN THE MAl7ER OF AN ARBITRATION
under
THE CRW EMPLOYEES COLLECTIVE BARMINING ACT
before
THE GRIEVANCE SEllLEMENT BOARD
Between:
OPSEU (Abriel et al)
and
The Crown in .Right of Ontario
(Ministry of Education)
Before: J.E. Emrich Vice-Chairperson
I.J. Thomson Member
D.A. Wallace Member
For the Grievor: C. Wilkey
Counsel
Cornish & Associates
Barristers and Solicitors
For the Employer: R. J. Drmaj
Counsel
Hicks Morley Hamilton Stewart & Storie
Barristers and Solicitors
Hearing: October 16, 1987
November 25, 1987
0619/86
Grievor
Employer
-
=;. DECISION'
Placed before the bard were twenty-seven individual grievances filed
in May, 1986 which raise the same issue as to the correct calculation of
shift prtiun for hours of work during the night fran 5:00 p.m. to 7:00 a.m.
the follwing morning. me dispute centres upon the apprcpriate
interpretation of the shift pranimn clause and sleepin credit contained in
an addendum tc the collective agreement. The relevant portians of the
collective agreement for the period fran January lst, 1986 to Dec6ber 31st,
1988 are the follwitq:
11.1.1
11.1.2
11.2
11.3
11.4
Effective March 16, 1987, an eqloyee shall receive a shift
pranium of forty-five cents (45c) per hour for all hours
worked between 5:oO p.m. and midnight. where mxe than fifty
percent (5%) of the hours worked fall within this period,
the forty-five cents (45c) per hax premium shall be paid for
all hourswurkd.
Notwithstanding 11.1.1, effective Arch 16, 1987, an
qloyee shall receive a shift premium of fifty-five cents
(55c)perhcur for allhourswrkedbetweenmidnightand 7:oO
a.m. Where mre than fifty percent (50%) of the hours wxked
fall within this period, the fifty-five cents (55c) per hour
premiun shall be paid for all hours waked.
Notwithstanaing 11.1.1 and 11.1.2, where an arployee's tis
of wxk narmally fall within 7:00 a.m. and 5:00 p.m., the
anployee shallnotbe entitled to receive a shiftpremiur~for
hcurs waked between 5:oO p.m. and 7:oO a.m.
Shiftpreniuns shallnotbe consideredas part of an
employea's basic hourly rate.
Shiftprani~sshallnotbeIuidtoanemployeewhofor
nutuallyagreedupcn reasonswxks a shiftforwhichhewuld
otherwisebe entitled toa shiftpreniirm.
2
AEimlmlmTfiE'MEm
CONDITICNS AND @lFWYEE BENEFITS
axLEmIvEAGREEMmr
The partiesheretohave.agreed tothe terms of this
Addendum covering mployees in classifications of
Residence Counsellor 1, 2 and 3 in the Institutional
Care Category and Nurses Special Schcols in the
Scientific and Professicmal Service Category.
mis~~~shallbeattachedtoandformpartofthe
Workiq conditions and Ehployee Benefits Agreemmt.
The tems of the settlement are as followa:
(bj Sleep-inisnotwrkandshallonlybeanpermatedas
specifiedherein. Mweduledsleep-inhausshallbecredited
at the rate of fifty percent (50%) to a m&sn.an of four (4)
hours credit for those hours on sleep-in duty per night
twardthe reguiredannual accmnulation. Sleepinhaus
prior to or foll&g a period of wxk shall not form a &t
of the work shift for anyp..qose under thisagreement.
By way of background to the grievance, it was cczrecn grcxmd that as of
Septanber 1, 1985 the arployer bad changed its practice concerning the
calculationof shiftpreni~entitlenent. Prior to Septabr 1, 1985,
sleepinhours wereincluded ashours worked for thepurpose of calculating
shiftprmliun. Pron Septeder 1, 1985, sleepin hours were excluded fran
the calculatim of shiftpremiumentitlemant.
mbehalf of the grievors, the Unionarguedthatalatentambiguity
arosewhentheprovisicns of the addendmnpertaining to the sleep-incredit,
are read with the shiftprsmimnprovieions. In sqport of its argunsnt, the
Uni.an eought to introduce the 1982-1983 collective agreema&, the pravisicms
of en interest arbitraticn award dated May 23rd, 1985 which changed the
language of the addendmn and the 1984-1985 collective agreement which
incorporated the changeinlanguage awarded. The Unicmccntendedthatitis
apparent fran the face of the interest arbitration award that the change
3
effected to the'sleep-in credit language was intended to be lh.itad to the
calculation of overtime and was not intended to disrupt other substantive
entitlemzmts under the colleckive~agreemnt. The Unim asserted that the
mloyerhad representedbeforethearbitraticnkoardthatthe change in
language ithadproposedwas toclarifythemeaning ofsk?ep-incredit
specifically for the purpose of wertim calculatim. In the alternative,
therefore, the union claimed that the Employer was estopped fran ccntending
that sleep-incraditshouldnotbeincluded for thepurpoee of calculating
shiftprenim.
mbehalf of the R@oyer, twoobjectiam were raisedatthe outset.
The first objection was that the grievances were untimely and should be!
dismissed on that basis. AcaxdingtoArticle 27 ofthecollective
agreement, an employee is obliged to rake the mtter with his supervisor
within 20 days of first beaming aware of the camplainor difference. If
thematterisnot resolved, theenployeemay fileawrittengrievancewithin
ten days fran the discuesianwithhis or her supervisor.
APSICW27 -GFSEVANCEPRXEDJPJ
27;l It is the intent of this Agreemmt toadjustas quickly as
possible any conplaintsor differences bet- the parties
arising fran the interpretation, applicaticm, ahinistration
or alleged contravention of this &rrement, including any
questicn as to whether a rpatter is arbitrable.
27.2.1 An enployeewhobelieves hehas a canplaintor adifference
shall first discuss the amplaintor differenc~withhis
supervisor within twenty (20) days of first benming aware of the canplaint or'difference.
27.2.2 If any caaplaint or difference is not satisfactorily settled
by the supervisor within seven (7) days of the d.iSCUSSim, it
maybeprocessedwithinanadditimal ten (10) days inthe
follohng manner:
”
i
STAGEONE
27.3.1 The mployeemay file agrievanceinwritingwithhis
supervisor. The supervisor shall give the grievor his
decision inwitingwithin seven (7) days of the suhnissim
of the grievance.
Grievances in this case were not filed until May 27, 1986. The
interest arbitration award which effected the pertinent change in language
was issued May 23rd, 1985. Tne collective agreementwhich incorporated the
changeinlanguage tothe addendunwas for the term franJanuary1, 1984 to
lXcenber 31, 1985, although it wea signed Oztober 30th, 1986. lhe anployer
instituted its change in practice cm September 1, 1985 in accordance with
theawardinMay. Thus,the~loyercontendedthatthegriarorsknew~
oughttohavekmwn that the credit for sleepinhcurswas nolaqer
attracting shift premix in !%pte&er, 1985. Accordingly, thegrievances
filed in May, 1986 were untAnely. Inrespmse, the Uniontcok theposition
that the difference at issuebetwaenthepartieswas of ccmtractual
interpretation sothatthebreach allegedkms of acontinuing nature.
Ccnsequently, the unicn argued that any &lay in grieving affects the relief
available, but not the right to grieve.
The secondobjection raisedmbehalfof the anployerwas that the
extrinsic.evidence sought to be intrcduced before this Board was
inadmissible tocontradict, vary or amend the clear and UMmbiguoustems of
the collective agreemmt.
ltirdly, the Employer's couwelccntendedthatsincethechangein
1anguageeffeaeJtothewll~ve~eenentumsrnadeplrsuanttoan
interest arbitration award in 1985, only that interest arbitration board
couldhave jurisdicticntoclarifytherneaning of its award. Finally, an
5
behalf of the Eh@oyer, it was argued that there was nopastpractice or
representation upon which an azmt of es-1 could be founded.
In respect to the cbjecticx'raised as to timeliness of the grievahces,
the Board finds thattheissue raised inthis case is of a continuing
nature. The controversy inthis case concerns the appropriate
interpretationtobeplacedupmthe shiftpremitxnand sleep-incredit
provisions of the collective agr-nt. Such a dispute is to be ccntrssted
to a situation where the msaning of the applicable provision of the
collective agr-nt is uncontroversial, but the question arises as to its
application to a specific occasion when eligibility is said to arise to a
prsmim payment. Althaqh the change in calculationof shiftprmiwn&s
instituted by the FqAoyer cm Septen&r 1, 1985, this change was instigated
by achangeinlanguage tothe agreemanteffectedthroqh arbitration. The
gra-nof the disputebefore this Boardconcerns themeaning and extent of
the change as it was incorporated in the1986-1988 collective agreement for
all instances cn a cc&inu.i.ng basis that shift prmim for sleep-in hours
could be claim& Thus, the date thatthegrievance swere filed does not
serve torender the grievancesinarbitcable,butdces serve as alimitto
the retroactivity of any relief. A similar issue arose in GSB #1358/84,
8e OPSW (U&m grievance) and Ministry of C4nsmnity and Social Services.
Inthatcaee,thecIuestionaro4eastowhetheragrievar~~a
canpressed work week was entitled to overtim for hours worked in excess of
fortyhours perweek. After e xaminingthelaqaageinthecollective
agreement, theboardamcludedthata claimof this naturewas a ccntiuuing
nature at p.8:
Iiere, the subject matter of the grievance
undwbtedly restadupan anallegaticcthatthe Ccmpanr
6
was mrmitting a continuing violation of the Collective
Agreementby failing topay Ms. Setmff overtime for the days in which she Wrked in excess of 8 hours par shift.
'he evidence disclosed that fran May, 1984, onward, Ms.
Semff conti.nued.to &ork at least twSlZ-hour shifts per
week without receiving any overtime pay. Bch sucn 12-
hour shift constituted a fresh basis for an arbitrable
allegation of violaticn of the Collective Jqr-nt.
Each constituted a fresh "occurrence or origination"
giving rise to a right to grieve in the l&ion within the
msaning of Article 27.8.1. In this sense, the 3!&day
time limit solely operates as a patential restriction
upon the quanta of any relief or damages a-dad
retroactively.
In Re Port Colborne General iicepital and ON?. 23 SAC (M) 323 (Burkett), the
boardconductedathoroughrwiewofthe case lawcmcemingthe discernmnt
of a coA.inuing grievance at pp.325329. At pp.327-328, the board ?
extrapdatedthe follwing ccnclusions:
It is clear frana readingofthe cases that the
question thatmustbe asked is whether or not the
conduct that is ca@.ained of gives rise to a series of
separately identifiable breaches, each one capable of
supporting its cn+n causeof action. Allegations
concerning the unjust imposition of discipline, the
iaprcper awarding of aprcn0tion or the failure to
provide anyprmni~~~~orpaymentrequiredunder the
collective agreemsnt cm a single occasion, while they
may have mgoing -es, constitute allegations of
discrete non-tinuing violations of the collective
agrement . In contrast, an allegation of an ongoing
failuretopay thewa~~e rateor anybenefitunder the
coll.ectiveagranentorancmgoing concerted-k
stqpage ccnstitute allegation of ccntinuing breaches of
the collective agreement. In these cases the party
against whosthe grievances is filed takes a series Of
fresh steps each one giving rise to a separate breach.
In this latter type of case the time-limits for the
filing of a grievance, apart altogether fran any
questicm as to when damages anmencetonm,nn=tbe.
found to be triggered by the breach clceest in t.inm to
the filing of the grievance.
(anphasis added)
7
In the instant case, the Board fin@ that the grievances are ofaoontinuiq
nature which nust be taken to have been triggered by the anployer's alleged
continuing breach of the collective agrwt cccurring within twenty days
of May 27, 1986. Shwld the grievances succeed, relief wuld be limited tom
the timz pericd duringwhichthe grievances shculdhavebeen filed.
Turning to the arguments an the merits, the Soard confirms its oral
ruling delivered at the hearing that it was prepared to receive the
extrinsic evidence adduced for thepurpose ofdisclosinganallegedlatent
~iguityandtoascertainwfiethertheelaaentsofanestoppelcouldbe
established as claimsd by the Union.
In the 1982-1983 collective agreemant, the relevant prcwisions of the
agreement were in the follwing terms:
ll.l~.l An eqloyee shall receive a shift premium of thirty-five
cents (35~) per hour for all hours worked between five
(5:00) p.m. tin seven (7:00) a.m. Where rare than
fifty percent (50%) of the hours fall within this period
thepremiumshallbepaid for allhours~~lced.
ADDRJUJM To ltfE hYXKtN2
CONDITICNS AND EwmYEFiBENEmTs
cDILE!rIvE~
l'hepartiesheretohave agreedtithe termsof this
RLulendm covering Bnployees in classifications oft
Residence Counsellor 1, 2 and 3 inthe Institutional
Care Category and Nurses Special Schools inthe
Scientific and Professional Service Category.
The terms of the settlwt are as follcws:
(b) Scheduledslee@nhcurs shallbe creditedat
the rate of fifty percent (50%) to a maxinun
8
of far (4) hours credit for those hours cc
sleep-in duty per night tomrd the required
amualaccumlatim.
m Mayo 23rd, 1985 ah interest board of arbitration chaired by Professor
K. &ah issued its unahimw award (the%anaward)whicheffectedchanges
tothelanguage of the shiftpreniumprovisims and to the addendmin
respect to sleep-in credit. In respect to shiftprsmi~, the board
msnented as follcws at pages 35 and 36:
Next, ths Unicm proposes that the shiftpremiua,
which was fixed at 40c per hours effective January 1,
1983, should be increased to 60c per hour for the
afternccn shift and 15c per hour for the night shift.
We have already indicated above that we have accepted,
inpart, theUnicoargmantthatthereshouldbean t
increase in this premix. While the evidence does not
mqportincreasesinthe amounts proposedbythe Gnicn,
there is nevertheless evidence to support saw
imprwsmsnt . We therefore awardthatthe shift premium
set out in Article 11 be increased to 45c per hcur,
retroactive to January 1, 1984. It will be seen that we
have changed the language of Article 11.1 in cur award
abovemthesamesubject. Tnatlanguagechangeis.
intended to be effective as of the date of this
collective agreement, so that any retroactive pay should
be calculated upon the applicatim of the previous
languageratherth+upmthenewlyawardedlanguage.
FSnally,theUnionpropceestoincreasethecredit
for sleep-in hairs for counsellors in 8chools for the
DeafardBlind. At the present time, thcee counsellors
arepaid 50% of their usual rate for tire spent sleeping
inside thehanswhile the children under their care are
sleeping. Tne cred.itis,bcwever, limitedtoamaximm
of 4hours credit per night. lhe tim proposes to
increase the creditto100% ofhws spentattheham?,
withnonaximm, andpoints tothe provisions for
stand-bypayin Article 15 as an exan@e ofhwother
employees required to keep thwselves available for
Mate recalltoworkare treated.
While we have read the subnissims of the parties,
we are sinply unable to ssewbethsr, and exactlyhw.
the treatment of anplqees on stand-by and 6@oyees
sleeping in the schools for the DeafandBlind shculdbe
canpared* While the language is different, we are not
9
surehmthe clauseshavebeen applied toparticular
circoustances. Koreover, it is not imnediately obvious
that it is more or less disruptive of an enployee's life
toba reqiiredtosleepinthe s&col, whichmay or may
not involve interrupticms to one's sleep, than to be
permitted to sleep athane, buttobe subject to
inmediate recall atanytima.
In all of the circunstances, we do not see a
caqelling case to alter the present situation.
These provisions were incorpor ated into the collective agremnent for
the term January lst, 1984 to Decaaber 31st, 1985, which was signed October
30th, 1986 in Article 11.1.1, 11.1.2 and 11.1.3:
ARrIcLF,ll -sHIJ?rPPBlILM
11.1.1 Effective January 1, 1984, an eiqloyee shall receive a
shift prmnium of forty-five (45) cents per hour for all
hcurs mrked between 5:00 p.m. and 7:00 a.m. where mxe
than fifty percent (50%) of the hours fall within this
period the preuion shall be paid for all hours wxked.
11.1.2 Sub-section 11.1.1 shall cease to have effectccl the
date of signing of this collective agreerent.
11.1.3 Effective on the date of, signing of this collective
agremaent, a shift pranirnn of forty-five (45) cents per
hour shall be paid for allhoursworkedbetween 5:00
p.m. and 7~00 a.m. Wnere the mloyer schedules any
shiftwhichbegins before 5:00 a.m. or ends after 7:00
p.m., shiftprmnimnshall be paid for all schedtied
hoursworkedanthatshift.
In respect to the sleep-in credit provisions of the W, the San
award observed atp.63:
Wehave alreadydealtwith the Un.im'spropcealin
respect of sleep-in at these schools. lhe hployer
proposes an amsn&mnttothesameclausetoclarifythe
provision for the purpcees of prmniun payment,
. We think that the clarification is
appropriate, andin the absence of anydmwnstrati~by
ths Gnicnthatsubstantive rightsarebeingtakenaway,
we awardthe Rq~loyer'sproposal.
10
'Ihis~portion of the awardwas incorporated into the 1984-1985 collective
agremnent as part (b) of the Mdendum in the follwing terms:
(b) Sleep-in is not -i-k and shall only be ccqensated as
specified herein. Scheduled sleep-inhcurs shall be credited
at the rate of fifty percent (50%) to a llbsimm of four (4)
hours credit for those hours on sleep-in duty per night txward the required annual accunrlation. Sleep-in hoxs
prior to or follwing a period of work shall not form a part
of the work shift for any purpose under this Fgreemant.
Rqhasis is added to highlight the changea language introduced in the
1984-1985 agreement. mis new clause was imorporated into the1986-1988
collective agreement without further ame&nent. No evidence was adduced
ccmcerningwhattranspiredatnegotiatims for the198688 agremnant in'
respect to this clause.
The shiftprmnimnprovisiaae ware amended in the 1986-1988 collective
agremsant to provide one preniun payable for hours viorked between 5:00 p.m.
andmidnightandahigherpremiun for thehourswrk&betueenmidnightand
7:00 a.m. Anew provisionwas inoorPor ated to epecifically disallcw shift
premium, if an eqAoyee's hours of work normally fall bet-n 7:00 a.m. and
5:00 p.m.:
AKrIcL!zll- SHIFrPREMILM
11.1.1 Effective march 16, 1987, an esployee shall receive a
shift premium of forty-five cents (45c) per hour for
all hours wcaked between 5:00 p.m. and midnight. Where
awe than fifty percent (50%) of the hours worked fall
within this period, the forty-five oents (45c) perhcur
prmniwnshallbepaid forallhourswbrked.
11.1.2 Notwithstanding 11.1.1, effective March 16, 1987. an
eaployss shall receive a shift prenium of fifty-five
cents (55c)perhow for allhoursworkedbetween
midnight and 7:00 a.m. Wnere rsxe than fifty percent
(50%) of thehourswarked fallwithinthisperiod, the
fifty-five centre (55c) per hour prmaim shall be paid
for all hours worked.
11
11.2 Notwithstanding 11.1.1 and 11.1.2, where an employee's
hours of wrk normally fall within 7:00 a.m. and 5:00
p.m., the eqloyee shall not be entitled to receive a
shift premiun for hours waked between 5:00 p.m. and
7:00 a.m.
Mr. William Huner gave evidence on behalf of the Union. Hs holds the
positicllof Residential Councillor 3 at W. EQss i+kzBznald Schcolandis
responsible for scheduling shifts. Be explainedthatthe grievorswrk a
canpressed work year fran septanber 1st to the end of June, but are paid for
dfullyearifanerployeeaccurPilateslBsP)havsdurihgthes~ll.
A regular shift for the grievors w.&d aznmence at 11:30 a.m. and end at
11:00 p.m. If scheduled for night-k, agrievorwouldbe conaidered'cn
sleep-in fran 11:00 p.m. to 7:CM a.m. and be credited for 50% of these hours
toamaximxnof fourhours creditanightmds theannual accmnulation.
Mr. Huner pointed out that prior to 8epta&er 1985, for the six hours wrked
fran 5:00 p.m. to 11:08 p.m., plus the fourhours credited for sleep-in for
the hours fran 11:mp.m. to 7:00 a.m., ten hcurs wuld be -iderd
eligible for attracting shift prenimm. Aswningananployeewrkeda shift
follwedby a sleepin, the total time spent an the prtises atwrk during
sleep-in wrxlld be 17.5 hours. Sincemre than 50%ofthet&alhours fall
between 5:00 p.m. and 7:00 a.m., Article 11.1 prtiided that shift pranim
would be paid for all of the 17.5 hays mrked. EbllMi.ng September 1985,
Mr.Iiunerwasins~ by the nnployer to change the mmnerinwhichthe
hcursatwork~dattractshiftprealiUL Althcughanarployeewtid
continue toacamulats 17.5hours tcwards the annualaccunulation, anly the
six hcur period waked fran 5:00 p.m. to 11:00 p.m. wauld attract premilnn
Pay* The fcurhours credit for sleep-in did not attract sh.iftprtiLan.
12
i
Thus an eqloyee no lcnger was considered to wxk mxe than 50% of his or
her hours between 5~00 p.m. and 7:oO a.m. so as to earn shift preniun for
allhaxsworked. This change in'practice was tabulated by Mr. ?iuner in the
foll&.ng fashial:
credited ?burs
Weakdays
UP 11:3oamll:oopn 11.5
sleep ll:O@n-7:00am 4
UP 7:00am-9:00am 2
17.5
up 11:30am-12:00am 12.5
SleeV 12:00sm-7:00am 3.5 - UP 7:00am-11:3&n 4.5
20.5
Saturday
up 11:30am-12:0&Iam 12
sleep 12:00am-7:00am 3.5
UP 7:00am-ll:oOpn 16
sleep 11:00pn-7:00am 4
UP 7:00anF9:00enl 2
37.5
Pre 09/85
s/p
I-&S
SIP w
6
4
ii3
11.5
4
2
17.5
7
3.5
18.5
12.5
3.5
is
7 12
3.5 3.5
6 16
4 4
20.5
2
37.5
bst 09/85
s/p
L-h
s/p w
6 6
6 6
7
7
7 7
6 6
13 13
7
7
* S/P = St-Lift Premilml
13
Piously, the reductim in the number of hours forwhich shift
prmim is paid has significantly reduced the amunt of shift prmiun
received by the grievers. Mr. Huner calculatedthatdifference in respect
to one of the grievors:
M. Ferras
1987/88 0cheduled hcurs of work
ps3. of "sleepin" shifts
EituftFranimPa~t
pre Sept. 1985 - 1729 hrs x .45
postSapt. - 665 hrs x .45
Decrease in shiftprmiunpayable
1889.5 hrs.
106
$778.05
229.25
$478.80
Mr. Buner added that the anployer inpl6ustltedother changesin
practice regarding entitlfxmt to other benefits. For instance, although
thehours of sleepinuere craditedtomrds the annual accusulatim, Mr.
Huner stated thathewas instructednot to credit the sleep-inhours for
the purposes of accmA.ating sick leave, or in respect of other benefits
such as maternity leave, hereav-t leave, & wcrkers' wnpensatim.
Grievances were filed or -1ai.nt.s were raised ccncerning these issues and
subsequently settledon thebasis that the faxhours of sleep-in credit
wculdbe credited tmards the accunulatim of entitlement to those
benefiti. Wnen questioned in crcss-examinaticm abut the treatment of
sleep-in bows, Mr. Eiuner admitted that prior to Saptaber 1985, if an
mplcryes went on sick laave, 17.5 hours would be deducted franhis or her
14
t
sickleavebank and credited towards the annual accumlation, whereas after
September 1985,.mly 13.5 hours (17.5 hours minus 4 hcurs sleep-in credit)
mldbe deductedandcredited tmard accumlatedhours. however Er. Huner
thenadnitted thatatnotime did the treatment of sleepin credit affect
the annual acctiaticn of hcurs. Furthsnmre, Mr. ?iuner agreed in crces-
examination that wentually an arrangment had been made so that accumulated
hcurs, maternityleave,bereavarrntleave and socnwould remain unaffected
by the change in treatment of the sleep-in credit. The change in practice
continuedtoaffect the calculationof shiftprsmim. Mr. Huner agreedthat
the amount of shiftpremioncm anhourlybasishadbeenincreased in the
current collective agrement, althaqhhe acknouledgedthatsinceheh¬
been involved in negotiations for renewal, he could shed no light upon tit
trade-offs had occurred. In cross-e xaminatial, Mr. Elmer was questialed
concerningachange~chhadoccurredatthet~the1984-85agreanentwas
implementedbythe 5nployer. Prior to SeptcMaer 1985, if an employee were
wakenedduring a sleepin to tend toa child, the time spentupwith the
childmldbe creditedas "u@ime" andthatamountof timewouldbe
deducted franthe calculatioaof sleep-incredit. With the is@snentation
of the 1984-85 collective agreement, an employee would, receive all hcurs
creditedas "ptime" foraccuaulatedhausaswell asbecreditedtamrd
themaximmof the four hour sleepin credit.
Mr. Speers also gave widence on behalf~of the &cm. Hehas been a
steward for approximatelythreeyears,buthe~not~thenag~ating
team for renewal of the 1984-85 collective agreeman tor of the current
collective agreement. Mr. Speers explainedthatthe change in the
contractual language awarded andinmnag6rentpractice regardinghours of
15
Sleepincreditsparkeda flurryofquestions franbargaining unitmmbers.
Accordingly, Mr. Speers sentamtothe Superintendent of the school, Mr.
*ill. outlining the questicms. Inparticular, clarificatianwas sought
concerning the inpact of the changeinlanguage uponaccunulatedhours for
the purposes of sick leave, bereavement leave, caqxssianate leave, and
union leave. Mr. were stated that several grievances were filed in
respect to the inpact of the changed language on sick leave. lieaddedthat
the grievances were settled. Since Dem&er1985 or January1986, the
Dnployerhas utilizedthe fourhour sleep-in credittwardthe accurmlatim
of sick leave, onpassionate leave and bereavement leave.
Incross-examina ticm, Mr. Speers ackwledgedthathehad spokenwith a
ma&x of the union hierarchy who had been present at the interest
arbitration. Mr. Speers stated thathewas told that the arbitrator chose
to use the language for the addend- proposed in the B'fployer's brief. LJhen
askedwhetherhe knew if thatperscnhadadvance -ledge of thepropxed
latquage, t&. spaers replied thathe didnotkncw, nor didhe semtokxmw
what had transpired durirq the interest arbitraticm process. Wnen
questicned concerning the treatment of accunulatedhows and sick leave, Mr.
Spsers acknmledged that 17.5 haxs (ie. incluling 4 hcurs sleep-in ~credit)
muldbededucted franthe sickleavebsnkandcr&iitedtauardtheannual
accumlatim of haxs. No shiftpremiunwuldbepayable for thoseham.
He explained that prior to Septmber 1985, hours of sleepin time and
working timeunxlldbe counted for the purposes of entitlementtobereavement
leave am3 sick leave. kbever, Mr. Speers pointed out that time spent on
unianleavewould~be.~t~~dthe~~ accumlatiaxofhaus.
Thus, hewmldbe cbliged towxk extra shifts tocaqxnsate for the time
16
i
off work, SO as to ensure the requisite annual hours of accumlatim would
bemet.
The Boarabegins by &serving that the grievances were filed inMay,
1986 and ccmsequently fall to be determined by the terms of the current
collective agreemnt for the term January 1, 1986 to Decmbsr 31st, 198%
The Mdendm is expressly stated to form part of this collective agreement.
The Board finds thatthelanguage of part (b) is clear anits face, indeed
the Unimdidnot suggestthattherewas anypatentambiguity in this
provisianpertaining to sleep-in credit. While the evidence 0fMr. Hmer
andMr. Spews suggests thatatonepointbargaining unitmenberswere
concernedwhether the change inpracticewouldaffectthe credit for s&p-
inhcurs in respect tothe requiredannual accunulatimofhours, it is
clear that issue was resolved by the parties. Infact,thewordingofpart
(b) expressly requires sleep-in hours up to a imaximmof four hours per
'nighttobe credited tomrd the required annualaccurmlaticn. Thus the all-
mbracinglanguage of thelastclause inpart (b), which states that "sleep-
inhoursprior toor follming apericdofmrk &al.lnot forma part of the
wzzk shift for any purpose under this pgreanent". is qualified in respect to
credittmardannualaccwnulatim.
The gravamen of theUn.im's argmentisthatthe mem.ingofthisfi.nal
clausehasbeen further qualifiedbythe arbitratimboardatthe time the
language was first awarded, and by the parties in their briefs at
arbitratim and in their subeequentpractice. niswas saidtodisclose a
latent a&iguity in part (b). Hmever, the Board find?thatthe testimony
bf Mr. Huner andm. Speerswas not helpful indisclosingwhatthe
intenticms were of the unia~ and m@oyer representatives respmsible for
17
negotiations and the briefs at arbitration for the 1984-85 agre6nent.
Furthernwre. no evidence was adduced as to what transpired during
negotiations or arbitration for renewal of the current collective agreanent.
Given that mnplaints were voiced at least w Nnranber 1985 as to the
Bt@oyer's changeinpractioebasedon the language avarded, thatgrie-es
have been filed and settled in respect to credits for sick leave-and sleep
in credit, that grie-es were filed kerning shift praniun in May, 1986
and that the current collective agreementvms not signed mtil March 16,
1987, the Board wxld expect that the parties wxld have availed Elves
of the opportunity prasented atbargaining for renwlof the current
agreementtoaddress thewording of part (b) of theAddendunandt.he~Ming
of Article 11. Indeed, e xamination of Article 11 in the current collective
agreement and the prior collective agr smentreveals that the shift premium
hourly rate was increased for hours.workedbetu~enmidnight and 7:&J a.m.
In particular, a w clause 11.2 was introduced which addresses entitlemsnt
to shift praniun:
11.2 Notwithstanding 11.1.1 and 11.1.2, where an qloyee's hours
of work ncmnally fall within 7:00 a.m. and 5:00 p.m., the
eqloyes shallnotbe entitledtoreceive a shiftpremiun for
hours wked bstw3e.n 5:00 p.m. and 7:00 a.m.
In the instantcase,becauseofthecanpressed~k schedule a&&cable
tothessgrievors,theirregularhoursrequirethwtobeupwiththe
children fran 11:30 a.m. to 11:00 p.m. on weekdays and fran 7:06 a.m. to
9:wll a.m. on weekdays fol1cwi.q a scheduled sleepin. Cm weekends, the time
spentupwiththechildrenis extended fran 11~30 a.m. to midnight and from
7:00 a.m. to 11:00 p.m. the day follcwing a echeduled sleep-in fran midnight
to.7:00 a.m. llus, even leaving aside the questicnas towhether sleep-in
18
,
T
tints shouldbe ccnsideredas part of the anployee's normalhours ofmrk, it
is clear that the grievors v,ork an extended shift beyCna 7:00 a.m. and 5:00
p.m. Thus, 11.2 would seem not to apply to their situatim. ISxever, the
point the Board wishes to draw is that the insertion of a new 11.2 suggests
thattherewass-~gai~~mnrerningshiftpr~~,andsleepin
credit. Ewever, the langcage of the ad&n&m remeined unaltered in the
current collective agreemantdeepite the fact thatthegrievance 8 hadarisen
wer the MdendLnnlanguage as it was applied to shiftpremiU% Thus,
asst.nning that a latentambiguitywsre disclosed in the language, for those
working nornml hours laqer than 7:00 a.m. to 5:00 p.m., no definitive
resolution all0A.q entitlmuant to shift pranimn for sleepin hours was
achiwed in renewal of the current collective agremnent.
&A behalf of the Union, it was argued that the passage at p.63 of the
Swan award reveals and resolves alatentasbiguityinthemaaning ofpart
(b) of the Addendum. Alternatively, it was argued that the latent ambiguity
is revealed and resolvedby the- of the Sanawardwhenccnsidered
in light of the Rqloyer's response to grievances +-I respect to sick leave
pay-cuts, andtoanwrns expressed regarding maternity leave, bereav-t
leave andwatkers' canpensatim.
TheBaardbeginebynotingthatthe~on's~~pres~sthat
conclusicns as to the parties' intentions for the current collective
agreementcanbe drawn fran curn?sntary inthearbitraticnawardamendingthe
addendmlanguage intbeprior collective agr- tfor1984-85. Since the
award was issued in May 1985, the 1984-85 agreesant was signed in October,
1986 and a r-1 collective agreenan t for 1986-1988 w executed on march
16, 1987, sweral grievances were filed and ccmplaints raised concerning the
19
emended language in the addendm and its effect qxm other -fits.
Fesolutim of these nrmplaints suggests that the parties interpreted the
language toman thatbenefits such as short-termsickleave, maternity
leave, bereavenentleave andworkers' canpensation were to be unaffected by
the language change regarding sleep-incredit. The questim arises whether
a similar conclusion canbe draws fran the evidence regarding shiftpranim.
In the .&an award atp.63, the language awarded is described as clarifying
the sleepin credit "for the purposes of prmium payment apparently
specifically for the -es of overtim calculatim". The Unim
understands this tomeanthatthechange in language shouldbeinterpreted
toaffecttiyovertim calculatim. The Bxrd declines todrawthat
ccmclusian. Tne language tich was awarded is clearly mre caqxehensive in
its plain meaning. Theclause provides thatsleepinhalrs are precluded
franformingapartoftheworkshiftforanypurpose. l'heswanbmrdfound
thatthislanguagewas appropriate in respect toclarifying entitlenentto
overtins, horJever the anmsntaryintheawarddoesnotmeguivocallylimit
the scqs of the amendedlanguagetoatertimeprani~andno~erprani\rm
PW=-* The Unim argues thatthephrase "in the absence of any
demmstratimbythe Unicm that substantive rights arebeing takenaway",
the Board should conclude thatthepartiesmantthatuoother substantive
rights were meant to be affected by the ammdmmt. The Board does not share
thatvi&r. Wuaremayhavebeenanusberofr~ t&-bytheUnim failedor
optea~-J demmstrate @nether or had substantive rights were to bs
affectedbythe ams&esnt. Eixthamfe, thebcmlingof the cmaentaryin
the S&nawarddoes not necessarily capture accuratelytheparties
intentions iu respect to a subsequent collective agresmant. The Board had
20
no direct evidence at this hearing fran Gnim representatives resmible
for presenting at the 1985 arbitration or who carried out negotiations for
renewal of the current agreement. The subsegment resolution by the parties
concerning sleep-in credit and sick leave and other benefits does not
necessarily man that the parties intended the - result in respect to a
premionpaymentsuch as shiftprmium. Thus, the Board concludes that the
extrinsic evidence adduced does not resolve any ambiguity. 'Ihus it cannot
assist the Board in resolving the nksaning of the Z4ddendum in respect to
shift premix, in the 1986-1988 collective agremsnt under which the
grievances arose.
The Wardtherefore finds thattheplain mesning'of theJUddendumdoes
not support the Union's contentian that the current practice of the Employer
in respect to the calculaticm of shift prmim is in breach of thecurrent
collective agreement.
The Gnimargued in the alternativethatthe anmntary at p.63 of the
Wanawardcontains a representaticncm the part of the Dnployer that the
changed language of the Mdendumvzould affect onlyo*ertimsprmim~. lhe
union alleged thatupm this representation, anestclppelcouldbe founded
whichmldbarthe l?q.Goyer fronchamgingitspracticeinrespecttoshift
premix calculation. lhe Board is reluctant to make a finding of such a
representatim without mre evidence as to the antents of the brief and
suhnissioosby the Fmployer at ths arbitratim. Even if the Ekoardwere to
assrnne that th5 ament at p.63 of the &an award allows a reasmable
inferencethatthe~loyerdid~esurhareptesentaticntothe~gl
before the San arbitratimtmard, there is a serious dearth of evidence
before this Board to satisfy the other elsmsnts n5ce55ary to found an
21
estoppel. It is not clear upon the evidence before this Board that the
Ihim relied upon the Employer's brief and suhnissions at arbitration and
for this reasQl didnot pointouttothe Skboardthe inplicatims of the
language change tothe?ddend~uponother substantiveprovisims. Other
explanatims for the Union's position are equally plausible and the Board is
without sufficient evidence of what transpired to rake a determinatim.
Wxe crucial to the viability of the Ihaim's argunent is the fact that
there was insufficient~evidence before the Board from witnesses who were
respmsible for renewal of the 1986-88 agreawnt fran tich to conclude that
any representatim by the Ehployer and reliance therm by the union w.$d
survive and continue bsymd the renewal process. An opportunity weld have
arisenduring the re-lprocess for theparties toaddrees theprcblens
raised by the mrplaints in late 1985 and the grievances in May, 1966.
There is insufficient evidence before this Board frun vhich to conclude
whether any representatim by the Ehgby5r or reliance m the part of the
Union survived the rermalprccees.
For the foregoing reasaIs, theEoardconcludesthattheel~ts
necessary tofoundtheapplicatimofe~lhavenotbeenestablished.
In th5 result, the grievances sre dimi.ssed.
22
Dated at Kingstm, this 27th day of January , 1989.
J I.J. lQ+% _’
D.A. Wa.l.lace
--
Member
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