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HomeMy WebLinkAboutAllen 89-09-10IN THE MATTER OF AN' ARBITRATe.ON BETWEEN' ALGONQUI~ COLLEGE OF APPLIED ARTS AND TECHNOLOGY (Hereinafter cal]ed the "College") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Hereinafter called the "Union") [GRIEVANCE OF B.ALLEN] BOARD OF ARBITRATION' E.E.PALMER,Q.C., CHAIRMAN T.KEARNE¥ A.MERRITT APPEARING FOR THE COLLEGE' R.J.ATKINSON and others APPEARING FOR THE UNION' G.A.RICHARDS and others A IIEARING IN THIS MATTER WAS HELD IN OTTAWA, ONTARIO, ON 23 MAY 1989. -AWARD- The present arbitration arises out of a grievance filed by Ms. B. Allen, a Senior Nurse with the College who was hired in 1968. The nature of her complaint was that she had been improperly paid for Good Friday in 1987. This matter was not resolved during the grievance procedure and so forms the basis of the present arbitration, a hearing in relation to which was held in Ottawa, Ontario, on 23 May ~989. At that time the parties were given an opportunity to present evidence and argument. No question arose con- cerning the jurisdiction of this Board or its composition. The facts in this matter were brief and not in dispute: Thus, it was agreed that the above facts relating to the grievor, who was also the Chief Steward of Local 416 of the Union, were correct. Unfortunately, Ms. Allen suffered a heart attack which resulted in her absence from work for a period from early February of 1987 to June of that year. During this period of time, in line with a fairly consistent policy of the College, for the first eight days of her absence she received her full salary and after that for the remainder of her absence only 75% of her regular earnings. The above payments are dealt with by virtue of Article 8.~.3 of the governingAcollective agreement. This ~rovision..reads [see.Exhibit I]: -3- 8.1.3 Short Te~m DisabilJ.ty During the term of this Agreement, the Colleges will continue the Short Term Disability Income Plan presently in effect, to provide the first eight (8) days at full pay in any one (1) plan year (which begins on September 1 of each year), the details of which are published in the revised Group Benefit Program folder. The total cost of the Short Term Disability Income Plan will be paid in full by the Colleges. The Colleges will also establish the normal provisions and limitations as to benefit eligibility and coverage. For the duration of coverage the Plan shall provide benefits of seventy-five (75) per cent of regular earnings. In the "revised Group Benefit Program folder" mentioned in this section [Exhibit IV], it is shown for coverage that after the initial eight days, the remaining period of coverage, "including statutory and College holidays" will be paid at the 75% of normal earnings level. There is no dispute that the' College did this. As noted, this was in accord with the normal practice of the College. No evidence was tendered to show that the Union was aware of this course of action. The claim of the grievor in this case is that, in addition to the above payment, she is entitled to payment for Good Friday pursuant to Article lO of the governing collective agreement. The relevant parts of this provision read [see Exhibit Il' lO.HOLIDAYS 10.1 Entitlement An employee who has completed thirty (30) calendar days of continuous service will receive his/her regular rate of pay for his/her normal scheduled, hours (up to a 'maxi~d°~r~t--- ~vv , ~ ...'('8)). for the holidays set out following. The position taken by the Union is that clearly the grievor meets the requirements of ArtiCle lO.1. "In thi~ regard, they take the view ~hat holiday pay question is an earned benefit rather than some form of guarantee. Thus, this should be paid to the grievor regardless of the fact that at relevant times she was in receipt of Short Term Disability payments. They note that there exists authority to the contrary in the community college system in the award of Re Mohawk College and O.P.S.E.U.(Haliuk), unreported (H.D. Brown, lO Feb. 83) [hereinafter called the Haliuk case]. Notwithstanding this, they claim this case was so wrongfully decided that it should not be followed and the reasoning above accepted. Starting with the question of whether one should follow the Haliuk award, the Union advances the proposition, generally accepted by arbitrators, that previous awards, such as Haliuk should be followed in later cases unless they are clearly wrong. To this end, Re Seneca College and O.P.S.E.U.(White), unreported (Brunner, 19 Jan. 82), was cited. Thus, in their opinion, the present case raises the question whether Haliuk was "clearly wrong", as they urge is the case. On this point, the Union first turned to the general question of whether holiday pay is an earned benefit. They claim there exists a presumption that such is the case with the type of language in issue' Re A. Silverman & Sons, 18 L.A.C. 224 (Weiler, 1967), esp. at p. 227. In this case t,heY note ~'hat the requirement of minimum service constitutes - 5 - the "earning" component of the benefit. In thi~ regard.,, they note similar 'provisions-in the collective agreement' Articles 10.3-5. In contrast, they refer to Articles 12.6-7 and 18.2.6 as one dealing with matters of pay maintenance. On this point, they argue that Article 8.1.3 deals with this latter issue. On this point, they cite' Re American Can, 26 L.A.C. (2d) 189 (M. Picher, 1980); Re North York General Hospital, 27 L.A.C. (2d) 64 (Shime, ~980); Re Northwest Community College, 16 L.A.C. (3d) 443 (Munroe, ~984-B.C.); and Re Caressant Care Nursing Home, 29 L.A.C. (3d) 347 (Watters, 1987). The Union then moves to what they consider is the error made in the Haliuk case. This, they claim, is found in the language of that award on page '. .... Since he was unable to carry out his regular duties, he is unable to establish a loss of straight time hourly earnings for that holiday period, as he would not have worked the regular hours in any event. His entitlement to payment as a result of his indisposition, falls under another section of the collective agreement referred to above, which albeit separate from the holiday pay, supports the conclusion that the purpose of Article 6.02 (b) as submitted by the Employer, is to indemnify an employee for loss where the circumstances clearly set out in that section, have pertained, in order that the employee is paid for the number of hours that employee would have worked had there not been a holiday period. This error, then, allows the present board to intervene in the present case and can and should alter the previous decision. In conclusion, the Union dealt with the issue of' qual.ifying ,,days; stati.ng such did not alter the foregoing and, in support, citing Re Temiskaming Hospital, 28 L.A.C. (3d) 178 (Devlin, 1987). Accordingl'y, the Unjon requested that this griev- ance succeed. The case for the College started with the view that the Haliuk case was correct and that, in any event, the onus is on the Union to show it was clearly wrong. The position of the College is that, even though they are of the opinion the Ha]iuk award is correct, any error in reasoning is not of such degree so as to make it "clearly wrong." In essence, the College takes the same general position as the Union on the effect of previous awards, i.e., that one may only interveve when a previous decision is "clearly wrong." They cited on this point: Re Brewers' Warehousing, 5 L.A.C. 1797 (Laskin, 19~4); Re ~hillips Cables, 16 L.A.C. (2d) 225 (Swan, 1977); and Re Steel Co., 27 L.A.C. (2d) 252 (McLaren, 1980). The College, too, accepts that there are two strains of thought on the question of "earned benefit" or "wage maintenance" in cases such as this. They reviewed these and, in general, the sections of the collective agree- ment mentioned above. The cases referred to were: Re Welland Forge, 23 L.A.C. (2d) 296 (Hinnegan, 1979); Re Durham College and O.P.S.E.U., unreported (McLaren, 14 Mar. 83); Re Sarnia Genera! Hospital, 24 L.A.C. 181 (Shime, 1972); and Re Be!l Canada, 18 L.A.C. 68 (Weatherill, 1978). Thus, again they reiterate that, at the very least., there is. .. a reasonable division,o,n the issue at hand ~nd so the present Board is constrained to follow Haliuk. . , Therefore, they reqK~st this grievance be dismissed. Having considered this matter, this Board agrees with the position taken by the College and awards that this grievance be dismissed. In this regard, we would note initially that we agree with the reasoning of the Haliuk award. Briefly, Article l0 of the collective agreement, our view, contemplates holidays and holiday pay for persons in active employment. This is so even though the present language appears somewhat different than at the time of Haliuk; the differences do not touch the basis of the reason- lng in Haliuk or here. We would also note that Article 8.1.3 incorporates by specific reference the Group Benefit. Program folder [Exhibit IV] which provides Short' Term Disabilty benefits payments, among other things, for "statutory and College holidays." Thus, this reinforces our decision for to grant the grievor's claim, in a sense, would be to grant a type of double payment for the same period of time. Put another way, acceptance of the Haliuk award harmonizes the interpre- tation of the collective agreement on this point. Given the foregoing, then, the Board finds it unnecessary to consider the question whether Haliuk is "clear- ly wrong" We conclude the opposite is the case. At the very least, the above reasoning would lead us to conclude it is not patently unreasonable and therefore should not be followed. Accordingly, this grievance is dismissed. - 8 - 1989. E. mer, Q.C. I concur/d4 ~seni; ( '~' '~"~t.~__,.~.c c, A. Merritt