HomeMy WebLinkAboutAnger Group 05-03-08 THE MA-I-I-ER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE
(the "College")
and
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(the "Union")
RE: GROUP GRIEVANCE CONCERNING ARTICLE 13.2.1.1
PROTECTIVE FOOTVVEAR
OPSEU GRIEVANCE #2004-0109-0013
BOARD OF ARBITRATION:
PAMELA COOPER PICHER- CHAIR
ED SEYMOUR - UNION NOMINEE
MICHAEL RIDDELL-COLLEGE NOMINEE
APPEARANCES FOR THE UNION:
Tim Hannigan- Counsel
.lean Fordyce - Local Union President
Reid Clark - Grievor
APPEARANCES FOR THE COLLEGE:
Aida Garfield - Counsel
Linda Ballantyne - Director Human Resources
Sheila Wilson - Acting Staff Relations Consultant
A hearing in this matter was held in London on January 19, 2005.
AWARD
The Union filed a group grievance dated April 28, 2004 asserting that the College
was acting in breach of article 13.2.1.1 of the collective agreement by insisting on
receipts for the purchase of protective footwear as a precondition to paying employees
the $100.00 footwear allowance set out in article 13.2.1.1. Article 13.2.1.1 provides as
follows:
13. HEALTH AND SAFETY
13.2.1.1 Footwear
Where an employee is required by the College or by
legislation, in order to perform his/her duties, to
acquire and wear protective footwear, the College
shall pay to such employee, on the first pay day in
April in each year, an allowance of one hundred
dollars ($100.00). The employee shall provide
evidence, if required, that protective footwear was
purchased.
Over the years, a provision similar to article 13.2.1.1 has been in the parties'
numerous collective agreements. It is common ground that prior to the events leading to
this grievance, the College had never asked employees to produce receipts as
"evidence ...that protective footwear was purchased". The parties agree that while the
College, at times, has required "evidence ...that protective footwear was purchased",
the evidence so required has been normally in the form of "show me your boots", as
opposed to the production of receipts. The parties further agree that on multiple other
occasions over the years, the College has not asked for any evidence that protective
footwear has been purchased as a precondition to paying the $100.00 allowance.
Accordingly, the evidence and submissions reveal that over the many years of the
implementation of the footwear allowance, the College has essentially paid employees
who are required to wear protective footwear the $100.00 allowance on an annual basis
asking, at most, that the employees simply show the College their protective boots as
"evidence ...that protective footwear was purchased".
The resulting situation has been that employees have received the $100.00
allowance in respect of years in which they have not actually purchased boots. The
following example describes the situation. In a given year #1, an employee might pay
$150.00 for a particularly good quality pair of protective boots, thereby paying more than
the allowance would cover. In year #2, that same employee might not need to replace his
or her boots due to the good quality of the purchase in year #1. In year #3, the same
employee might then need to replace his or her protective footwear and, once again,
might pay $150.00 for another pair of good quality boots. It is evident that as article
13.2.1.1 has been applied over the years, this employee would have received the
$100.00 allowance in each of the three years. The only precondition to the payment of the
allowance has been that the employees show their boots to management if such has
been required. Accordingly, as emphasized by the Union, the employees have received
their $100.00 allowances even in years when they have not actually purchased boots.
The situation giving rise to the instant grievance is that prior to the allowance
payment in April of 2004, the College announced that it would be requiring the production
of receipts for the purchase of protective footwear as "evidence ...that protective footwear
was purchased" before it would pay the $100.00 allowance. Accordingly, by insisting on
the production of receipts as "evidence ...that protective footwear was purchased",
employees would no longer receive the $100.00 allowance in a year in which they did not
purchase boots, even if the reason for not purchasing the boots was that the employee
had paid a premium for particularly good quality protective boots the year before, as set
out in the example, above.
In response to the College's announcement that it would be requiring receipts for
the payment of the April 2004 allowance, the Union filed a grievance on April 28, 2004
asserting that the requirement of receipts as proof of purchase was not only a breach of
the requirements of article 13.2.1.1 but also an inappropriate departure from past
practice.
Following a grievance meeting between the parties on June 15, 2004, the College
stated that it would not strictly enforce its requirement for receipts for the payment of the
April 2004 allowance. The College reasoned that given the timing of the College's
notification, employees might not have been aware of the need to keep their receipts at
the point when they purchased the protective footwear to which the April 2004 allowance
would apply. At the same time, however, by a memorandum dated June 22, 2004, the
College stated that it was putting the Union and it's membership on notice that in respect
of the April 2005 footwear allowance, it would require the production of receipts as proof
of purchase.
As an additional modification, and in order to further extend the notice period for
the employees, the College stated at the instant arbitration hearing in January of 2005
that it would not actually require receipts in respect of the April 2005 allowance. The
College confirmed, however, that for the April 2006 allowance, it would insist on receipts
as "evidence ...that protective footwear was purchased" before it would pay the $100.00
allowance.
The Union maintains that the footwear allowance provision is designed to provide
approximate compensation for the cost of the protective footwear. Union counsel
contends that the parties have estimated that an allowance of $100.00 annually is
appropriate compensation for a requirement to wear protective footwear, whether or not
protective footwear is actually purchased in any given year. As noted, the Union
emphasizes that an employee purchasing particularly high quality protective footwear in
one year might not need to replace that footwear in the following year. In contrast,
another employee might buy lower quality protective footwear and thus might need to
replace the footwear every year. By the Union's interpretation of article 13.2.1.1, each of
these employees would receive the same $100.00 allowance annually, without regard to
whether the protective footwear actually had been purchased in the given year, as long
as the employee is always wearing appropriate protective footwear. In contrast, the
College asserts that article 13.2.1.1 is not a reimbursement provision and is not
designed to compensate employees for the actual cost of protective footwear. The
College emphasizes that it's interpretation of the footwear provision is that it provides an
allowance of $100.00 to help defray the cost of protective footwear in a year when, and
only when, protective footwear is purchased. Counsel for the College contends, thereby,
that if no purchase of protective footwear is made in a given year, there is no cost to
defray and, accordingly, no entitlement to the footwear allowance.
Counsel for the Union maintains that given the practice between the parties over
the years respecting the application of the article 13.2. 1.1 protective footwear
allowance, the College is estopped from insisting on the production of receipts as a
precondition to the employees' entitlement to the $100.00 allowance. Counsel for the
Union maintains that the College is estopped from requiring employees to produce
receipts in any period of time arising under the current collective agreement because, it
argues, the Union has not had an opportunity to bargain changes to the protective
footwear provision in the face of the College's insistence on the production of receipts.
The Union maintains that it has relied to its detriment on the College's alleged practice of
not requiring receipts as evidence of purchase by negotiating successive collective
agreements with the understanding that the "evidence ...that protective footwear was
purchased" under article 13.2. 1.1 would not include receipts.
Effective with the College's memorandum of June 22, 2004, which stated that the
College would insist on receipts for the April 2005 allowance, employees have known that
they would need to keep receipts in order to collect the annual footwear allowance
payable on the first pay day of April 2005. Since that time, the College has extended by a
further year, i.e. to April of 2006, the point before which it will require receipts. The
College will be paying the April 1, 2005 footwear allowance to all employees falling under
article 13.2.1.1 whether or not they produce receipts for the purchase of such footwear. It
will not be until April of 2006 that the College will require receipts as "evidence ... that
protective footwear was purchased". Accordingly, the employees now have a notice
period of some twenty-one months during which time they know that they will need to
keep receipts for the purchase of protective footwear in order to collect the $100.00
allowance in April of 2006.
In addition, the Union currently has the opportunity to bargain the collective
agreement that will replace the current agreement, which has an expiration date of
August 31, 2005. The Union has an opportunity to bargain changes to the article 13.2.1.1
footwear allowance in the face of the College's stated requirement that it will insist on the
production of receipts as "evidence ...that protective footwear was purchased" and that it
will insist on such receipts as a precondition to the payment of the $100.00 allowance in
April of 2006.
Ms. Jean Fordyce, the Local Union President since 1991, testified that the current
two year collective agreement expires on August 31,2005. She noted that in the coming
few months following January of 2005, the parties will be exchanging positions in the
negotiation of the replacement collective agreement, which is bargained centrally. Ms.
Fordyce commented that the procedure followed by the Union is that prior to the
exchange of such positions, the Locals submit their proposals to a central Union
committee. The central committee then determines which demands will actually be
exchanged with the College. Ms. Fordyce stated that on the day of this arbitration,
January 19, 2005, she notified the Local team that she wanted the team to press in
instant bargaining for an improvement to the protective footwear provision in article
13.2.1.1. Ms. Fordyce acknowledged that there is no guarantee that the central Union
bargaining committee will actually put the Local's demand on the table in the upcoming
bargaining. The opportunity is there, however, if the Union wants to press for a change to
article 13.2.1.1.
Having carefully considered the position of the parties, the Board of Arbitration is
satisfied that even if there has been a clear and consistent practice
under article 13.2.1.1 that receipts would not be required as a form of "evidence ...that
protective footwear was purchased", the College has provided the Union with sufficient
notice to bring that practice to an end. The Board is satisfied that both the notice period
of approximately twenty-one months and an intervening opportunity to bargain changes
to article 13.2.1.1 in the negotiations that are currently underway to replace the
collective agreement expiring on August 31,2005 are sufficient to negate any
detrimental reliance that otherwise might have existed. Measured from the point of the
instant Arbitration hearing in January of 2005, there are some fifteen months before
receipts will be required in respect of the allowance payable in April of 2006. The Board
does not accept the submission of the Union that the practice cannot be brought to an
end at the stated termination date of the current collective agreement on August 31,
2005 and, instead, must wait until such time that the parties actually reach agreement
on a replacement agreement, i.e. even if that is at some point after August 31, 2005.
Accordingly, for the reasons set out, the Board has determined that the College
is not estopped through past practice from requiring receipts as a form of "evidence
...that protective footwear was purchased" as a precondition to the payment of $100.00
in April of 2006. Sufficient notice and an opportunity to bargain have brought an end to
whatever practice may have existed respecting the requirement of receipts as "evidence
... that protective footwear was purchased", pursuant to article 13.2.1.1.
We turn then to the interpretation of article 13.2.1.1, standing on its own, without
regard to past practice. It is the position of the Union that the College's requirement to pay
the annual allowance of $100.00 in respect of protective footwear is mandatory and is not
dependant on the production of "evidence ...that protective footwear was purchased",
even when such is required by the College. Counsel for the Union submits that the two
mandatory stipulations referred to in article 13.2.1.1 (first, that the College will pay the
footwear allowance on the first pay day in April in each year and, second, that employees
shall provide evidence that protective footwear was purchased when required by the
College) are two separate requirements and ones that are not linked in their operation.
Accordingly, the Union maintains that the stipulation that, "The employee shall provide
evidence, if required, that protective footwear was purchased" is not a precondition to the
College's requirement that it pay, annually, a $100.00 footwear allowance.
Having carefully reviewed the evidence and the submissions of the parties, the
Board of Arbitration cannot agree. The Board is satisfied that the plain meaning of the two
stipulations in article 13.2.1.1, when read together, is that, if required, the employee shall
provide evidence that protective footwear was purchased as a precondition to the
College's obligation to pay the $100.00 footwear allowance on the first pay day in April of
each year. The Board concludes that the plain meaning of the second stipulation in article
13.2.1.1 in respect of the employees' requirement to provide evidence of purchase when
such evidence is required by the College is only fulfilled if it is read as a precondition to
the College's obligation to pay the allowance.
Moreover, the Board is fully satisfied that receipts for the purchase of protective
footwear fall squarely within the meaning of the word "evidence", such that the College's
requirement for the receipts falls directly within its entitlement to insist that employees
provide "evidence ...that protective footwear was purchased".
Accordingly, for the reasons set out above, the Board concludes that the College's
stated intention of requiring receipts as "evidence ... that protective footwear was
purchased" as a precondition to paying the footwear allowance payable in April of 2006 is
fully consistent with the terms of article 13.2.1.1 and is well within the College's rights
under the collective agreement.
In the result, the group grievance, hereby, is dismissed.
Date at Toronto this 8th day of March 2005.
Pamela Cooper Picher
Chair
S.C.
I concur. "Ed Seymour"
Union Nominee
I concur. "Michel Riddell"
College Nominee