HomeMy WebLinkAboutPilon 98-11-30
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SUDBUR Y MEMORIAL HOSPITAL
("Employer")
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOC 659
("Union")
IN THE MATTER OF:
GRIEV ANCE OF KATHY PILON
OPSEU FILE NO. 97- 659 - 062
BOARD OF ARBITRATION:
Kevin M. Burkett - Chairperson
Diana Dean - Employer Nominee
Mike Farrell - Union Nominee
APPEARING FOR THE EMPLOYER:
Geoff Jeffery - Counsel
and others
APPEARING FOR THE UNION:
Jim Gilbert - District Grievance Officer
Kathy Pilon - Grievor
Hearing in this matter was held in SUDBURY, Ontario on September 2, 1998
AWARD
The Union grieves in this matter that the grievor has been denied a fifth week of
annual vacation entitlement in breach of the collective agreement. More specifically, it
is claimed that by reason of her prior service with this employer as a part-time employee,
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the grievor has sufficient" continuous service" to qualify for a fifth week of annual
vacation entitlement. The Hospital takes the position that, in addition to this being an
untimely grievance, the service requirement for entitlement to weeks of annual vacation
is limited to service within the full-time bargaining unit and, on this basis, the grievor
does not qualify for a fifth week of vacation until 2001.
The facts in this matter are uncontroverted. The grievor commenced service with
the Hospital in April 1978 as a part-time x-ray technician working on average three shifts
per week. Part-time employees were excluded from the full-time bargaining unit and
were not themselves organized. The Hospital's part-time employees became organized
in late 1982. The grievor continued to work as a part-time employee until March 18,
1985, at which time she was appointed a full-time x-ray technician. It is not disputed that
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by reason of her part-time service the grievor was credited with a seniority date of June
13, 1982, subsequently adjusted to December 18, 1981 to take into account a maternity
leave. The grievance was triggered by the posting of the 1997 vacation entitlement list
(March 18, 1997) showing the grievor with four weeks of entitlement. The grievor
believed that she had 15 years of continuous service as of 1997 and, therefore, would be
entitled to five weeks of vacation. The grievor had reference to the treatment of Ms.
Mary Kelly, another full-time employee who transferred from the part-time unit on May
29, 1993 and who, on the basis of service credits for part-time work from December 28,
1996, was granted four weeks vacation. However, Ms. Kelly did not receive credit for
part-time service prior to 1986; the period in respect of which the grievor seeks service
credit for her part-time employment. It is to be observed that there existed an express
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entitlement to credit on the basis of 1,650 part-time hours equal year of full-time credit
from 1986. There was no provision for conversion of part-time service to full-time
service upon transfer to the full-time unit at the time the grievor transferred to the full-
time unit in early 1985.
The relevant provisions of the collective agreement are set out below.
Article 26.01 (a) Applicable to Full-Time Employees ONLY
Registered Technologist and higher classifications who have
completed less than one (1) year of continuous service shall
be entitled to a vacation on the basis of 1.25 days per month
for each completed month of service with pay in the amount
of 6 % of gross earnings.
Registered Technologist and higher classifications shall
receive three (3) weeks after one (1) year of continuous
service, and four (4) weeks vacation after three (3) years of
continuous service.
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Employees below the Regi~tered Technologist classification
who have completed less than one (1) year of continuous
service shall be entitled to a vacation on the basis of .83 days
per month for each completed month of service with pay in
the amount of 4 % of gross earnings.
Employees below Registered Technologist shall receive two
(2) weeks vacation after one (1) year of continuous service,
three (3) weeks vacation after two (2) years of continuous
service and four (4) weeks vacation after five (5) years of
continuous service.
All employees shall receive five (5) weeks' vacation after
fifteen (15) years of continuous service and six (6) weeks
vacation after twenty-five (25) years of continuous service.
(b) Applicable to Re2ular Part-Time Employees ONLY
All regular part-time employees shall be entitled to vacation
pay based upon the applicable percentage provided in
accordance with the vacation entitlement of full-time
I employees of their gross salary for work performed in the
preceding year. Equivalent years of service shall be used to
determine vacation pay entitlement. Equivalent years of
service shall be calculated on the basis of one (1) year of
service for each 1650 hours worked.
Notwithstanding this provision, the calculation of service for
purposes of vacation entitlement will include service accrued
during a pregnancy leave or parental leave on the basis of
seniority accrual during such leaves in accordance with
Article 12.03(b) of the agreement.
Note: Employees hired prior to April 17, 1985 who are
currently enjoying vacation benefits superior to those
set out above shall continue to receive such superior
benefits.
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Article 16.08 (h) Seniority and Service
Full- Time Employees ONLY
During the year of the leave, seniority shall continue to
accumulate. Service for the purposes of vacation and salary
progression and other benefits will be retained but will not
accumulate during the period of the leave.
Article 12.01 (a) Applies to Full-Time Employees Only
(i) It is understood that during an approved unpaid
absence not exceeding thirty (30) continuous days or
any approved absence paid by the Hospital, both
seniority and service will accrue.
During an unpaid absence exceeding thirty (30)
continuous calendar days, credit for service for
purposes of salary increments, vacation, sick leave, or
any other benefit under any provision of the Collective
I Agreement or elsewhere, shall be suspended; the
.I benefits concerned appropriately reduced on a pro rata
basis and the employee's anniversary date adjusted
accordingly.
Article 12.04 Seniority shall be retained by an employee in the event he is
transferred from full-time to part-time or vice versa. F or the
purposes of the application of seniority under the agreement but not
for the purposes of service under any provisions of the agreement,
an employee whose status is changed from full-time to part-time
shall receive credit for his seniority on the basis of 1650 hours
worked for each year of full-time seniority. For the purposes of the
application of seniority, under the agreement but not for the purposes
of service under any provisions of the agreement, an employee
whose status is changed from part-time to full-time shall receive
credit for his seniority on the basis of one (1) year of seniority for
each 1650 hours worked. Any time worked in excess of an
equivalent shall be pro-rated at the time of transfer.
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Article 12.08 An employee who is transferred to a position outside the bargaining
\, unit for:
(a) a period of less than eighteen (18) months or such longer
period as the parties may agree upon or;
(b) a specific term of appointment, including temporarily
replacing an employee outside the bargaining unit
shall retain but not accumulate seniority held at the time of transfer.
In the event the employee is returned to a position in the bargaining
unit within the time periods noted in (a) or (b) above he shall be
credited with the seniority held at the time of transfer and shall
resume accumulation from the date of his return to the bargaining
unit.
The first issue to be disposed of is the Hospital's contention that this grievance is
untimely by reason of the grievor's failure to challenge her service date when she attained
four weeks vacation in 1989. In the opinion of the Hospital, the grievor should
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J reasonably have been aware from that date that her service was being calculated in the
manner suggested by the Hospital here. The Union maintains that her treatment for
purposes of vacation entitlement in 1989 did not tell her anything because four weeks
vacation entitlement applied to all employees with three to fourteen years continuous
service. It is the position of the Union that the grievor was of the mind that she would
become entitled to five weeks vacation in 1997 and that she grieved at the first
opportunity when made aware that she would not become entitled to five weeks vacation
until 2001.
Apart altogether from the question of when the grievor should reasonably have
known that her service was being calculated in the manner suggested by the Hospital and
apart altogether from whether this grievance can be characterized as a continuing
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grievance, the fact remains that on the Union's calculation of her service, the grievor .
became entitled to five weeks of vacation in 1997 and grieved immediately following the
posting of the 1997 vacation schedule in March of that year. It would be unusual, to say
the least, to require an employee to grieve anticipated harm, failing which he/she would
be estopped from grieving real harm. In our view, there was no obligation upon the
grievor to grieve a denial of a fifth week of vacation entitlement until denied the benefit.
It was upon denial of the benefit that the time limits commenced to operate.
Accordingly, the grievance is timely and the Hospital's preliminary objection is denied.
Turning to the merits. The issue to be decided is whether time spent as a part-time
employee prior to transferring into the full-time bargaining unit in 1985 counts as service
for entitlement to five weeks of vacation under the provisions of the collective agreement
i that apply to full-time employees. The Union takes the position that absent an express
exclusion of such time for purposes of calculating service, it must be presumed that the
parties intended to count all service with this employer. The Union points to the express
exclusion of time spent on prepaid leave [16.08(h)] or an approved unpaid absence
[12.05(a)] as service for purposes of vacation entitlement, as illustrative of the type of
language required to effect the result urged upon us by the Hospital. Absent any such
limitation upon the use of service as a part-time employee for purposes of calculating
vacation entitlement, we are asked to conclude that no such limitation was intended. In
further support of its position the Union relies upon article 12.08. In the absence of any
reference to curtailment of service, as distinct from seniority, when transferred to a
position outside the bargaining unit, we are asked to accept that service continues when
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transferred to a position outside the bargaining unit. It is argued that if the parties
intended service to accumulate when transferred to a position outside the bargaining unit,
it is unlikely that they would have intended to deny the application of service as a part-
time employee. Reference is made to the article 26.01 note in support of the proposition
that the intention was to maintain prior vacation benefits and that if the parties had wanted
to treat pre- and post-1986 service differently for purposes of vacation entitlement, they
would have incorporated into the collective agreement a note to that effect. Finally, in
the absence of any reference to loss of service upon transfer from the part-time unit to
the full-time unit in article 12.09, a deemed loss of service and seniority clause, we are
asked to conclude that service carries forward. The Union relies upon the statement in
Collective Agreement Arbitration in Canada (2nd) (Butterworths) (Palmer) that years of
) service, absent a cutoff date, is calculated from date of hire with the employer. We are
referred to Re: Georgian College and OPSEU (1997) 59 LAC (4th) 129 (Schiff), a case
which the Union asserts is on all fours with this one, and, in particular, to the finding in
that case that "years of continuous service include the time the employee spent as a part-
timer before taking a full-time position. The count begins at the date the employee was
first hired and not the later date of transfer into the bargaining unit." In this regard,
reference is also made to St. Andrew's Manor and OPSEU (1991) 2ndLAC (4th) 129 (T.
Jolliffe). Finally, it is argued that if the parties wished to limit the accumulation of
service for purposes of vacation entitlement to service in the full-time unit, and thereby
to deny prior service in the part-time bargaining unit, they could easily have made the
precondition for entitlement to weeks of vacation "length of full-time continuous service,"
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as in Re: Brantford General Hospital and ONA (1989) 7 LA C (4th) 399 (Brown). Having
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made the precondition here simply" years of continuous service," we are asked to find
that the intention was to include prior service as a part-time employee of the Hospital and
award the fifth week of vacation sought by the grievor.
The position of the Hospital is straightforward; language in the hospital sector
identical to that before us has been consistently interpreted at arbitration as limiting the
term continuous service in article 26.01 to years of continuous service within the full-time
bargaining unit. The Hospital relies on article 12.04 as providing a complete answer to
the Union claim. It is the position of the Hospital that article 12.04 speaks directly to the
issue at hand where it states that "for purposes of the application of seniority... but not
for the purposes of service under any provision of the agreement, an employee whose
) status is changed from part-time to full-time shall receive credit for his seniority on the
basis of one (1) year of seniority for each 1650 hours worked." We are referred to:
. Victoria Hosvital and ONA (April 12, 1994) unreported (M. Picher)
. Ottawa Civic Hosvital and ONA (1977) 17 LAC (2nd) 59 (Brent)
. Scarborough General Hosvital and ONA (1979) 16 LAC (2nd) 213 (Brown)
. St. Thomas-Elgin Hosvital and London and District Service Workers' Union
(September 10, 1992) unreported (Haefling)
Reference is made to Re: St. Josevh's General Hosvital Elliot Lake and IUOE (March
25, 1992) unreported (Craven) as a case where, absent language similar to our article
12.04, the finding was made that service dates from last hire. We are asked to conclude
that if language similar to article 12.04 had been included in that collective agreement,
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the result would have been the same as in the hospital sector cases cited above.
Reference is also made to Re: Sudburv Memorial HoslJital and OPSEU (April 3, 1993)
unreported (M. Levinson) where in the face of language that expressly provided for credit
for both service and seniority upon transfer from part-time to full-time status, it was
found that service dated from the time of hire as a part-time employee. Reference is also
made to Re: Douglas Memorial HoslJital and CUPE Local 1531 (February 27, 1991)
unreported (Brown) as an example of language providing for service credit for part-time
employment prior to transferring to the full-time unit. It is argued that if the parties here
had wanted to provide service credit for part-time employment, they would have
incorporated similar language into this collective agreement. Having chosen not to do
so, we are asked to find that it was not their intent to provide service credit for purposes
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j of vacation entitlement for part-time employment prior to transferring into the full-time
bargaining unit.
The issue before us falls to be determined on a close reading of the collective
agreement. The parties are free to make their own bargain. A review of the awards that
have been cited reveals that under some collective agreements, the parties have agreed
that service as a part-time employee should count for purposes of the vacation entitlement
of an employee who transfers to the full-time bargaining unit, while the parties to other
collective agreements have agreed not to count such service. The task before us is to
discern the intention of these parties under this collective agreement.
If it was not for article 12.04, we would be compelled to adopt the interpretation
urged upon us by the Union and the arguments in support of that interpretation relied
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upon by the Union. However, article 12.04 speaks directly to the issue at hand.
Whereas seniority is used to rank employees for purposes of promotion and/or layoff,
service is used as a precondition to certain benefit entitlements. These parties have
agreed that" for the purposes of the application of senioriry ... but not for the purposes
of service under any provision of the agreement, an employee whose ~tatus is changed
from part-time to full-time shall receive credit for his seniority...." (emphasis added).
It would have been an easy matter for these parties to have stipulated in article 26.01 that
vacation entitlement was to be on the basis of both full- and part-time service as under
the 1981 agreement referred to at page 5 of the Victoria Hosoital award (supra) or in Re:
Brantford General Hosoital and ONA (supra). They chose not to. The parties could
have provided in article 12.04 that both service and seniority would be credited upon
! transfer from the part-time unit to the full-time unit as in Douglas Memorial Hosoital and
CUPE Local 1531 (supra) for purposes of vacation entitlement or have remained silent
on the issue as in Re: St. Joseoh's GeneralHosoital Elliot Lake and IUOE (supra). They
chose not to. The parties could have stipulated that an employee whose status is changed
from part-time to full-time would receive credit for both seniority and service as in Re:
Sudbury Memorial HosDital (supra). They chose not to.
Instead, we have language that is essentially the same as that in Re: Victoria
HosDital (supra), Ottawa Civic Hosoital (supra), Scarborough General Hosoital (supra)
and St. Thomas-Elgin HosDital (supra). In each of these cases it was found that the
agreement of the parties was that part-time service did not count for purpose's of vacation
entitlement under the full-time collective agreement. The analysis of arbitrator Picher in
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Re: Victoria Hosvital (supra), which we consider to be correct, is illustrative of the
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reasoning advanced in these awards.
What, then, were the grievor's rights under the terms of the 1978-80
collective agreement? Article 24.02 of that agreement based the vacation
entitlement of all nurses on "continuous service" with no specific reference
to service in the part-time or full-time bargaining unit. In our view,
however, that provision could only be interpreted in light of the language
of article 13 .04, which expressly addressed the circumstance of a nurse
transferring from part-time service to full-time service. Article 13 . 04
makes specific provision for the transfer of an individual's employment
history as a part-time nurse to establish her seniority as a full-time nurse.
Significantly, in our view, the collective agreement makes no provision for
the transfer of service for any other purpose. Indeed, the language of
article 13.04 expressly excludes the application of the agreed credit formula
for the purposes of service and earned leave, except as might otherwise be
expressly provided in the collective agreement. Very simply, there is no
provision in the collective agreement for the transfer of service as it applies
to vacation entitlement, or for the purposes of earned leave. Therefore,
based on the language alone, we would feel compelled to conclude that the
parties made no provision for the carrying of service as a part-time nurse
into service in the full-time unit for the purposes of vacation entitlement
under the terms of the 1978-80 collective agreement.
The arbitrator relies on the prior awards in Re: Ottawa Civic Hosvital (supra),
Scarborough General Hosvital (supra) and St. Catharines General Hosvital and ONA
(1978) 19 LAC (2nd) 65 (Beck).
This takes us to -the award of arbitrator Schiff in Re: Georgian College and
OPSEU (supra). In so far as this award may be read as in conflict with the hospital
sector awards relied upon by the Hospital, we accept the hospital sector awards as more
compelling because they are based on language that applies in this sector that is
essentially the same as that here. Having said this, there is no language in the Georgian
College agreement that expressly excludes consideration of part-time service for purposes
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. of vacation entitlement under the full-time agreement as under the agreement before us.
The Georgian College agreement stipulates that "part-time support staff employees
transferred into the bargaining unit... shall have their seniority prorated... based on a
proration of hours of the part-time position...." This language was not interpreted to bar
credit for part-time service. The arbitrator found, notwithstanding this language, that by
definition "part-time employees of the college as well as full-time give 'service'" and
found on the basis of the unqualified reference to "continuous service" in article 11 that
"the count of years of continuous service begins on the date the employee was hired as
a part-timer." It is doubtful in our view that arbitrator Schiff would have come to the
same conclusion if article 14.3 of the Georgian College collective agreement had
stipulated, as does article 12.04 of the collective agreement before us, that the proration
) of seniority does not apply to service under any provision of the collective agreement.
If the parties to the Georgian College collective agreement had made the same stipulation,
arbitrator Schiff would not have been able to come to the conclusion that he did with
respect to credit for prior part-time service. In our view, he would have been forced to
come to the same conclusion as we have here; that under article 12.04 the grievor cannot
count service as a part-time employee for purposes of calculating her vacation entitlement
under the full-time collective agreement.
Having regard to all of the foregoing, this grievance is hereby dismissed.
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. Dated this ~ day of November 1998 in the City of To nto.
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I concur "Diana Dean"
DIANA DEAN
I dissent "Mike Farrell"
MIKE FARRELL
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