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HomeMy WebLinkAboutScanga Vincelli 08-09-12IN THE MATTER OF AN ARBITRATION BETWEEN— ONTARIO PUBLIC SERVICE EMPLOYEES UNION (SCANGA-VINCELLI) (the "Union") —and— ST. JOSEPH'S CONTINUING CARE CENTRE FOR THE HOTEL DIEU HOSPITAL SITE (the "Employer") BEFORE: Deborah J.D. Leighton, Arbitrator FOR THE EMPLOYER: Les Foreman, Human Resources Consultant Cindy St. Louis, Resident Care Coordinator FOR THE UNION: Kirsten Agrell, Counsel Nelson Roland, Counsel Roger Haley, OPSEU Staff Representative A hearing into this matter was held on January 22 and June 20, 2008 in Cornwall ON. Introduction This decision addresses four grievances filed by Carmela Scanga-Vincelli, a part-time Registered Nurse, that raise the same issue with regard to pay under Article 10.02(c) of the collective agreement between the parties. Article 10.02(c) provides as follows: The employer shall provide employees two (2) weekends off out of every four (4) weekends (unless mutually agreed on by two (2) employees to change their posted schedule). It is understand that a weekend consists of fifty-six (56) consecutive hours during the period following the completion of the Friday shift until the commencement of the Monday shift. Should an employee work a third (3rd) consecutive weekend, the hours worked on the third (3rd) consecutive weekend which are equivalent to the number of hours worked on the previous weekend, which created the third (3rd) consecutive weekend situation, shall be paid at one and one half times the regular rate of pay. Ms. Scanga-Vincelli claims that in June, July and August 2007 she was required to work three weekends out of four and the employer has not compensated her according to Article 10.02(c). The issue before me is whether a shift that begins at 11:00pm on Friday and ends at 7:00am Saturday counts as a weekend shift or not. The union takes the position that this shift is a weekend shift and, therefore, triggers the compensation under Article 10.02(c) if an employee is required to work more than two weekends out of a four-week period. The employer takes the position that the shift beginning at 11:00pm on Friday is a Friday shift and, therefore, not covered by Article 10.02(c). Union's Submission Nelson Roland argued on behalf of the union that the language of the collective agreement is clear and that the plain meaning of the terms favours the union's interpretation. The union's interpretation is consistent with the article itself and with the rest of the collective agreement. Counsel argued that the shift in question has some connection with Friday as it starts at 11:00pm, but that most of the shift occurs on Saturday, ending at 7:00am. Mr. Nelson argued that the naming of a shift as a Friday night shift does not determine the issue and urged me to look at the purpose of the article in interpreting it. The purpose of subsection (c) is to ensure that employees get two out of four weekends in a month off. However, if 2 they do not, then they get something in return for the loss: the employer must pay them overtime. He argued further that it is common sense that Saturday and Sunday are weekends. Further, the parties here agreed that a weekend would count as 56 hours, not 48. Thus, he argued the 56 hours must overlap the normally understood weekend of Saturday and Sunday. Eleven pm Friday night to 7:00am Monday is 56 hours. Mr. Nelson argued further that had the parties wanted to ensure that any 56 -hour period would be free, then they would not have specifically referred to weekends in the article. In fact, in Article 10.05 the parties were clear that every 14 days employees are entitled to four days scheduled off. two must be consecutive and the remaining two may be split. Thus counsel argued that parties know how to quantify days off and they avoid using quantitative language when necessary. They did not have to use the term "weekend" in Article 10.02(c), but they did and thus he argued I should give it its common sense meaning. Counsel for the union also noted that Article 10.02(c) refers to the 56 hours starting after the completion of "the" Friday shift until the commencement of "the" Monday shift. He argued that the use of the article "the" indicates a reference to a shift that is clearly on Friday and not simply marginally on Friday. He argued it is unreasonable to include a shift starting at 11:OOpm as a Friday shift for the purposes of this article. This is consistent with the interpretation that the 7:00am shift on Monday is the first Monday shift and that 7:00am marks the end of the weekend. Counsel also argued that this interpretation is consistent with the rest of the collective agreement, citing Article 11.06, which provides that holiday pay will start at 11:00pm the day prior to the holiday and end at 11:OOpm on the holiday itself. Counsel also pointed to Article 24.02, which provides weekend premium pay that starts at TOOpm on Friday. 3 In summary, Mr. Nelson argued that the interpretation urged by the union is the correct one and is most consistent with the collective agreement as a whole. This collective agreement includes both part-time and full-time nurses and a part-time nurse may not work any Friday shift, but the article should be interpreted to apply to all in a reasonable way. It makes common sense to centre the 56 hours that the parties have negotiated between 11:00pm Friday and 7:00am Monday. Counsel also argued in the alternative that should I agree with the employer's interpretation it is nevertheless estopped from relying on this interpretation of the collective agreement because during the last round of bargaining the union proposed language that would define the weekend as starting at 11:00pm Friday and ending at 7:00am on Monday. The employer countered with the response that it was not necessary because it was already covered in subsection (c) of the article. Thus, counsel argued that the union relied on the representation that the proposed language was not required and the employer is estopped from asserting their interpretation of the collective agreement until there has been an opportunity to renegotiate the agreement. Counsel relied on the following decisions in support of his submission: Medis Health and Pharmaceutical Services Inc. and Teamsters, Chemical, Energy and Allied Workers, Loc. 424 (2000) 86 L.A.C. (4`h) 357 (Simmons); St. Catharines Standard and St. Catharines Typographical Union, Communication Workers of America, Loc. 416 (1998) 72 L.A.C. (4`h) 332 (Rose); Amsco Cast Products Inc. and U.S. W.A., Loc. 8407 (1993) 34 L.A.C. (4h) 99 (Teskey); District Health Authority 48 and Nova Scotia Nurses Union (2001) 97 L.A.C. (4') 75 (Christie); National Steel Car Ltd. and United Steelworkers, Loc. 7135 (2007) 91 C.L.A.S. 111 (Slotnick). Employer's Submission Les Foreman argued on behalf of the hospital that Article 10.02(c) provides that employees get two out of four weekends off in the month, but not necessarily in a row. The article further provides that the S weekend is 56 consecutive hours after the Friday shift and until the Monday shift. The employer's view is that the shift that begins at 11:00pm on Friday and ends at 7:00am on Saturday morning is a Friday shift and should be counted as such for the purposes of Article 10.02(c). Thus, as long as an employee gets 56 clear hours off after Saturday morning at 7:00am the employer has satisfied the requirements of the article in Mr. Foreman's submission. He argued further that had the parties intended what the union is urging me to find, the language would have provided that the weekend began at the end of the day shift on Friday and began the morning of the start of the Monday shift as some collective agreements do. They could have been specific from 11:00pm on Friday to 7:00am on Monday. Because of different schedules, it is when the last shift on a Friday ends that the 56 hours of weekend begins. Mr. Foreman argued further that the parties refer to the shift that begins at 11:00pm on Friday as a Friday shift, and that in the grievor's evidence she recognized it as a Friday shift. He argued that the result of accepting the union's interpretation would be that a shift that began at 11:00pm on a Sunday night would have to be a Monday shift, so employees could be brought in to work before the end of the weekend. Mr. Foreman also argued that the union proposed a definition of a weekend beginning at 11:00pm on Friday and ending at 7:00am on Monday in bargaining, but the employer did not agree to it. The employer's view was that the proposal was not necessary because employees work a variety of shifts: as long as employees get the 56 hours after the end of any Friday shift, there is no violation of the collective agreement. Mr. Foreman also said that the union did not drop their proposal on adding language to define a weekend after the employer's representation that it was not necessary, and so there is no estoppel. He argued that the union gave up its position in bargaining and then filed the grievance. In his submission, the union should be estopped from asserting its position. He argued that the union never made any representation that they thought the Friday shift was part of the weekend. Thus, I should preclude the union from getting at arbitration what they sought, and did not achieve, in the bargaining round 5 Mr. Foreman argued that Article 11.06, which provides pay for a holiday, shows that when the parties turn their minds to the issue they can be clear, and in this case, the intent was clear that holiday pay would start at 11:00pm the day before the holiday. Likewise, with premium pay, the parties were specific in indicating when premium pay began on a Friday. Thus, the parties were clear in Article 10.02(c) that on the completion of a Friday shift 56 hours would start, and that includes all Friday shifts and, particularly, the one in question, which starts at 11:00pm and ends at 7:00am on Saturday. Thus, the Friday shift will be different for different people, but no matter what it is, each individual gets 56 hours off after it is finished. Mr. Foreman noted that in every one of the weekends that the grievor is complaining about, she got 56 hours of rest after the Friday shift. In summary then the employer's interpretation of Article 10.02(c) is consistent with the other provisions of the collective agreement, and the grievances should be dismissed. He also noted that even if I find that the union is correct in its interpretation, the grievor is only entitled to overtime in the third weekend up to the amount of time she worked in the second weekend. Therefore the grievance dated July 21, 2007, claiming overtime for July 1, 2007 should not succeed, if the July 5 grievance is granted. Decision The parties agreed that the issue before me is whether the 11:00pm shift, which begins on Friday evening and ends at 7:00am Saturday morning, is a Friday shift or a weekend shift. The union took the position that the language of the collective agreement in Article 10.02(c) is clear and that the plain meaning of the words favour the union's position that the shift in question is a weekend shift. Having carefully considered the submissions of the parties, I have decided that the union's position in this case is correct. I have been guided in my decision in part by the purpose of Article 10.02(c), which provides that employees get two out of every four weekends off. If an employee works more than two weekends in the four-week period, he or she is entitled to overtime pay according to the article. The common sense 0 definition of a weekend is that it includes Saturday and Sunday, or 48 hours from midnight on Friday to midnight on Sunday. However, these parties have agreed that the weekend is 56 hours for the purposes of this article. No matter what the 11:00pm to 7:00am night shift is called, which begins on Friday and ends Saturday morning, it requires work on a weekend and therefore triggers overtime pay if it occurs on the third or fourth weekend of work in a four-week period. It is worthy of note that the time between 11:00pm Friday and 7:00am Monday is 56 hours. Moreover, the language of the article itself describes the weekend as occurring between the end of "the" Friday shift and the beginning of "the" Monday shift at 7:00am. The union pointed out that if the intent of the parties were to give employees 56 hours after the end of any shift that began on Friday, the article would not refer to "the" Friday shift as if there was only one. I am of the view that in agreeing to a 56 -hour weekend, the parties intended to cover what we all understand as the weekend-- Saturday and Sunday, and then add hours to it that best fits with shift work. In this case, the weekend starts at 11:00pm on Friday and ends on Monday at 7:00am, with the start of "the" Monday shift. Thus, the article protects these 56 hours as the weekend. This interpretation is also consistent with the rest of the collective agreement. Article 10.06 provides that holiday pay begin at 11:00pm the night prior to the holiday, again tailored to shift work. The parties also specifically agreed for weekend premium under Article 24.02 that the weekend starts on Friday at 7:00pm. The employer argued that this shows that if the parties want to be specific they can be and they chose not to start the weekend under Article 10.02(c) until after "the Friday" shift ended. I disagree. I believe that Article 24.02 shows the parties consider Saturday work as weekend work and for the purpose of premium pay, they have begun the weekend even earlier than under Article 10.02(c). Thus, I am not persuaded that by giving the grievor 56 hours off after the finish of the shift beginning on Friday at 1 I:00pm and ending 7:00am Saturday, that the article is satisfied. This leads to the unusual result that Saturday is not the weekend and Monday becomes the weekend until 3:00pm in the afternoon. In my 7 view, this interpretation violates the intent of Article 10.02(c) to protect two weekends out of four for employees as work free or pay according to the article. Given my decision, there is no need to consider the estoppel argument made by the union or the employer. The language of Article 10.02 (c) is clear and the bargaining history is unnecessary to decide the issue. Mr. Foreman noted that if I agreed with the union's interpretation, the grievor is nevertheless only entitled under Article 10:02(c) to overtime in the third weekend up to the amount of time she worked in the second weekend. Therefore, the grievance dated July 21, 2007, claiming overtime for July 1, 2007 cannot succeed if the July 5, 2007 grievance is granted. Both these grievances cover the same four-week period. The grievor worked one eight-hour shift on the second weekend of the four-week period in question and thus is entitled to eight hours at overtime in the third week. Consequently, she is entitled to overtime pay for June 30, 2007, but not for July 1, 2007. For the reasons noted above, the grievances dated July 5, 2007, August 1, 2007 and September 30, 2007 are granted and the grievor should be paid for the weekend work done in excess of two weekends out of the four week periods grieved, according to Article 10.02(c). The grievance dated July 21, 2007 is hereby dismissed. I shall remain seized of any issue that may arise between the parties on implementation of this award. Dated at Kingston this 12th day of September, 2008. i to , Arbitrator