Loading...
HomeMy WebLinkAboutUnion 00-02-11 I , I . .,~ CART :.. 'qq ^'00'1 IN TI~ MATI~R O? AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATI~R OF GRIEVANCE #99A001 O.B. SHIME, Q.C. CHAIRPERSON R. HUBERT NOMINEE FOR THE COLLEGE J. McMANUS NOMINEE FOR THE UNION APPEARANCES: D.K. GRAY COUNSEL, and others for the College J.A. RYDERi'Q.C. COUNSEL, and others for the Union hearing was held in this matter at Sudbury, Ontario on May 5, 1999 On May 1998, Mr. Bill in correspondence between the parties which is as follows. You have credited me with 43 vacation days for the your calculations are in error. One academic year’s service (10 months) The Union indicated that the grievance is based on the letter from Bill Kuehnbaum to Denise dated May 6, and concerns the College’s calculation of academic vacation entitlement. Specifically, Mr. feasible. Therefore, the vacation period which most faculty are practice is for faculty to take vacation from mid-June until mid-August. During that 2-month period, there are 43 working days. In order to accommodate faculty who take vacation during the academic year, the In addition, it is the College’s position that this grievance is not a proper Union grievance, because it includes a matter upon which an employee their attention was only an illustration of the problem, that the matter was to be 2 months and they felt that the standard for every two month period The College explained that in order to and 2 statutory holidays. The College also said that this practice has been long established at For the foregoing reasons, it is my opinion that this grievance must be Filion particular period for-the two months vacation. The Union asserts that the Collective effect, everything is covered but weekends, so that if the weekends'are eliminated it leaves (365 · 104) 261 days. The Union maintains that the average month has (261 + 12) 21.75 paid days and therefore two vacation months have (21.75 x 2) 43.5 vacation days. The Union submits that each teaching month produces 4.35 vacation days. The Union admits that there has been a practice of calculating the vacation days as 43 days and that any estoppel that arises from the practice should terminate with notice. We note that while the original complaint asserted that there should have been a credit of 4.5 days per month, the Union, at the hearing modified that original calculation and now claims only 4.35 days. The Union also argues that, pursuant to Article 32.10, there was no individual grievance and no one was able to grieve, and accordingly, the Union is not prevented from grieving. The College maintains that there has been a long practice of prorating vacation entitlement based on 4.3 days per month. The College asserts that for the few people who start early or leave early, or who have their employment interrupted, the College has used 4.3 days per month since 1976. That practice has been open and notorious and the College issued statements axmually. The College claims that the Union was aware of its practice and there has been no complaint. The College submits that the Collective Agreement provides for an axmual salary over a ten month period, based on a ten month academic year, and that the ten month academic year is based on 2 15 paid days. There is a two month vacation period which amounts to 43 working days. The College maintains that there axe three possible methods of calculation. In the first method, the College suggests that in a. ny holiday period there axe no more than 43 days. The second method involves a calculation based on 365 days a. nd after removing weekends of 104 days a. nd removing the eleven statutory holidays that there axe 250 days in an academic yea. r, a. nd when that is divided by 12 it produces (250 + 12: 20.83 x 2) 4 1.7 days for vacation. The third calculation is based on 215 days a. nd calculates that there axe 43 working weeks of seven days for a total of (43 x 7)301 days a. nd if weekends axe deducted it leaves (43 x 2) 86 days to be deducted, leaving a total of (301 · 86) 215 days. A working year is 215 days for a ten month period, which is the equivalent of 2 1.5 days in a month. Accordingly, the vacation period of two months is equal to (21.5 x 2) 43 days. The College argues that the 215 day calculation has been upheld in numerous cases between this Union a. nd the Colleges. The College further maintains that this matter is not properly a Union grievance within the meamng of Article 32.10 of the Collective Agreement, a. nd relies on a number of cases in connection with that Article. The College also states that the practice of calculating vacation credits has been open a. nd notorious for so long that if there is a. ny ambiguity, the practice must be considered in order to resolve the ambiguity. The College also maintains that given the well known practice the Union is estopped from claiming that the practice should be different. By way of reply the Union maintains that it is wrong to exclude statutory holidays a. nd that there is no basis for the 215 day formula that the College seeks to apply. The Union also maintains that since it has raised an objection to the College's formula, the estoppel replied upon by the College must be terminated. from September 1 to the following June 30. a College determines the needs of any program otherwise, A full-time employee who has completed one full academic years one month, as scheduled by the College. Such teacher shall also additional eleventh month of teaching assignment to be paid on amount of the ten percent bonus referred to above, to be paid on completion of such assignment. A member of the teaching faculty It is understood that the above provisions for vacations are not An employee will be granted the following holidays on the day on which the holiday occurs or is celebrated by the College without Day period of a member of the academic staff teaching an 11th employee shall be granted an additional day off at a date When a holiday as defined in falls on a Saturday or on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged upon which an employee would be personally entitled to grieve and the passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this salary is paid for ten months. In addition, Article provides that employees who have OPSEU (Shosenberg unreported, May 14, 1997 (R.H. OPSEU and week vacation period which is (9 x 7) 63 days. balance, the College’s calculation which is based both on precedent and also on practice is deduction from the annual salary could not be made for the period of the suggestion in the collective agreement that the annual salary is to be pro two-month unpaid vacation which in our view points in the opposite direction)we must conclude that where a teacher is required to work 215 each day worked. (For further support see re Attorney General of Canada, SCC (1980) 112 D.L.R. (3d) 651.) The College, therefore, made the proper deduction from the salary of the grievor in coming to this conclusion we have not been persuaded by the provision in section of Bill 130 that an amount equal to of the salary of a teacher be deducted for each day of the 1984 strike. The legislature may not have put its mind to the unusual and somewhat the strike upon the teaching masters. Similarly, we have not been persuaded by the policy with respect to the calculation of the sick leave gratuity pre-dates collective bargaining. Finally, we have not been persuaded by the award of Arbitrator Brent in re Centennial careful analysis of the collective agreement but rather on the basis of the where it was determined that the annual salary is based on the ten-month to a different conclusion. Moveover, as we indicated, on balance, after considering all of the As to the practice, it is clear that since 1976 the College has the practice of A second use of “past practice” is quite different and occurs even where either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct (and, ambiguous provision. The principal reason for this is that the best accepted by the parties. Such a doctrine, while useful, should be quite grievance process. It does so by forcing higher management or union precedents which may plague either side in unforeseen ways in future words and structure of the agreement as seen in their relations context; (2) conduct by one party which unambiguously is based on one which is either quite clearly expressed or which can be inferred from the that members of the union or management hierarchy who have some responsibility for the meaning of the agreement have acquiesced in the “I DISSENT”