Loading...
HomeMy WebLinkAboutMoore 95-07-26 IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF LINDA MOORE BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR HUGH JOHN COOK COLLEGE NOMINEE JON MCMANUS UNION NOMINEE Appearances for the College: Robert J. Atkinson Gail Rozell Appearances for the Union: Mary Anne Kuntz Linda Moore Jean Crawford Louise Watt OPSEU FILE NO.: 94E524 (Support) DATE OF HEARING: May 31, 1995 1 The Grievor, Linda Moore, occupies a "less than 12- month position" and claims entitlement to continued benefit coverage for the period of up to 3 months each year during which she is laid off. The subject of less than 12-month positions is dealt with in a Letter of Understanding which is appended to the collective agreement which provides as follows: August 27, 1981 Mr. Sean O'Flynn President Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario Dear Sir: LESS THAN 12 MONTH POSITIONS It is recognized that the Colleges have positions within the bargaining unit from time to time that, because of the nature of the service rendered, require staffing for less than twelve (12) months a year. In such a case, where less than full time employment is identified prior to the time of hiring such employees, the College may effect a layoff of such employees for a period of up to but not exceeding three (3) months in any employment year without regard to the provisions of the Collective Agreement. Notwithstanding the foregoing, seniority and service shall accumulate for all purposes under the Collective Agreement during such period of layoff. This provision shall have no application where the employee in lieu of layoff hereunder has been granted a leave of absence in which case Article 14.2 shall have application. Prior to posting such a position, the College shall notify the Local Union of the circumstances and, where the Local Union requires discussion and explanation as to the basis for such a position being reduced to less than a twelve (12) month basis, it may request a meeting with the College, at which time a full explanation of the circumstances surrounding the designation of the position shall be given. Yours truly, A.M. Pesce, Secretary Staff Affairs Committee 2 Also of relevance is Article 8 of the agreement which deals with benefits and the material portions of this Article are as follows: 8. BENEFITS 8.1 Insurance 8.1.1 Life Insurance During the term of this Agreement, the Colleges shall pay one hundred per cent (100%) of the monthly premiums of the current basic life insurance plan to provide for term insurance coverage of $20,000.00 on the life of the employee and including a rider providing for the same coverage for accidental death or dismemberment. The Colleges will provide supplementary life insurance on a voluntary basis in units of $10,000.00 each to a maximum of five (5) units. The Colleges shall pay sixty per cent (60%) of the monthly premiums and the balance of the premiums will be paid by subscribing employees through payroll deductions. 8.1.4 Long Term Disability The Long Term Disability Income Plan shall provide benefits of sixty-six and two-thirds per cent (66 2/3%) of regular earnings. Details of the Plan are published in the revised Group Benefit Program folder. The Colleges shall contribute seventy-five per cent (75%) of the present premiums towards coverage of eligible employees subject to the payment of the balance of premiums by the employees through payroll deduction and subject to the eligibility requirements provided under such Plan. It is understood and agreed that employees eligible for~and receiving disability payments under the Plan up to September 1, 1974, shall continue to receive benefits under the original Plan providing for benefits of sixty per cent (60%) of regular earnings so long as such disability continues and subject to the provisions of the original Plan. The Colleges shall pay one hundred percent (100%) of the premiums payable for Life insurance, OHIP, Extended 3 Health, Dental Plan, Vision Care and Hearing Care, on behalf of persons receiving Long Term Disability payments, provided that such persons were subscribing to such benefits on the date the Long Term Disability payments commenced, if the ~erson so desires. The Colleges will endeavour to ensure that persons otherwise entitled to the payment of the benefits premiums pursuant to this clause, who have not had such payments made on their behalf from September 1, 1989, to the ratification date of the September 1, 1989 - August 31, 1991 Collective Agreement, shall have such benefits reinstated effective the date of ratification of that Collective Agreement. 8.1.5 Extended Health The Colleges agree during the term of this Agreement, to contribute one hundred per cent (100%) of the present premiums towards the current Extended Health Benefit Plan subject to the eligibility requirements provided under such Plan. The Plan shall be increased to provide three (3) pairs of orthopaedic shoes per year for children under 8, two (2) pairs per year for children from 8 to 18 years and one (1) pair per year for adults. 8.1.6 Dental The Colleges agree, during the term of this Agreement, to pay one hundred per cent (100%) of the billed premiums of an insured dental plan for coverage of eligible full-time employees on the active payroll who have completed their probationary period. The Plan provides features comparable to Blue Cross Plan 7, plus Rider 1 and Rider 2 and the ODA schedule for the immediately preceding year, subject to the eligibility requirements and terms and conditions of the Plan. In addition, effective November 1, 1992, the Plan will be amended to provide coverage on a non-cosmetic basis for crowns and bridges to be reimbursed at fifty per cent (50%) co-insurance, subject to the eligibility requirements and terms and conditions of the Plan. The combined maximum for the crowns and bridges coverage and Blue Cross Plan 7, Rider 1 and Rider 2 shall be $1,000.00 per person per plan year. Effective September 1, 1993, the combined maximum shall increase to $2,000.00. In addition, during the term of this Agreement, the Colleges will pay one hundred per cent (100%) of the billed premium for an insured dental plan with features comparable to the Blue Cross Rider 3 with $1,000.00 lifetime maximum per person.coverage regardless of age and fifty percent.(50%) co-insurance, subject to the eligibility requirements and terms and conditions of the Plan. Employees may opt out if, in their judgement, they have full coverage through a spouse's Plan. Details of the Plan are published in the revised Group Benefit Plan folder. 8.1.10 vision Care During the term of this Agreement, the Colleges agree to pay seventy-five per cent (75%) of the premiums for a Vision Care Plan providing coverage to a maximum of two hundred dollars ($200.00) each two (2) years for persons eighteen (18) years of age and over and two hundred dollars ($200.00) each one (1) year for persons under eighteen (18) years of age for glasses, frames, and contact lenses, subject to eligibility requirements and enrolment requirements, and the balance of the premium shall be deducted by payroll deduction. 8.1.11 Hearing Care The Colleges agree to pay seventy-five per cent (75%) of the premiums for a Hearing Aid Plan providing coverage to a maximum of five hundred dollars ($500.00) each five (5) years, per person, subject to eligibility requirements and enrolment requirements and the balance of the premiums shall be deducted by payroll deduction. The relevant facts are set out in an Agreement Statement of Fact which is as follows: 1. Linda Moore has been employed at the College in a less than 12-month position since 1987. Attached as Exhibit 6 is her original letter of appointment together with a completed Staff Appointment form. 2. The College has had less than 12-month positions for at least 10 years. 5 3. The consistent practice throughout this time with respect to employees in less than 12-month positions, including the grievor throughout her employment, is as follows: (a) In accordance with the letter of understanding respecting less than 12 month positions, employees are laid off for a period of up to three months in each year, normally in the summer. They are issued a Record of Employment in order to claim and receive Unemployment Insurance benefits during the period of their layoff. The grievor's layoff has been in the summer. (b) The employees do not receive any salary and are not on the active payroll of the College during the period of their layoff. (c) The College does not now nor has it ever paid any premiums for any benefits under the collective agreement for employees in less than 12-month positions while they are laid off under the terms of the letter of understanding. (d) Rather, the College has always given the employees an option of suspending benefit coverage for the period of the layoff or paying for the coverage themselves (100% of the premiums). The employees exercise their options,in respect of each benefit. (e) If the employee electslto suspend coverage for a particular benefit, the employee is not covered for the period of the layoff for that particular benefit but is signed up again for coverage upon being recalled to work from layoff. (f) Benefits in respect of which the employee elects to take coverage during the period of the layoff are paid for completely by the employee for such period. (g) The elections of the employees with respect to the various benefits are entered on an Absent Employees Benefit Election Form, an example of which is attached as Exhibit 10. 4. Prior to filing this grievance, the practice set out in paragraph 3 above has never been the subject of ~ complaint or grievance at Fanshawe College. 6 5. In the case of a layoff of any bargaining unit employee in circumstances other than those contemplated in the letter of understanding, the policy and practice at the College is that benefit coverage ceases altogether at the end of the month in which the layoff takes place. Attached as Exhibit 11 is an excerpt from the Benefits Administration Manual prepared for use by all colleges. Apart from the Agreed Statement of Fact, the parties advised the Board that the grievance filed by Ms. Moore initially raised two issues; one of which concerned benefit coverage and the other, vacation entitlement. This latter issue was resolved by the parties on the basis of the College's agreement that the Grievor's vacation entitlement would not be pro-rated to take into account periods of layoff of up to 3 months contemplated by the Letter of Understanding. According to Mr. Atkinson, the College based its agreement on an amendment to Article 14.2 of the collective agreement negotiated during the last round of bargaining which provides that seniority and service shall accumulate for any period of layoff pursuant to the Letter of Understanding respecting less than 12-month positions. Prior to this amendment, Article 14.2 was silent as to accumulation of seniority and service in such circumstances. As a result, in Ontario Public Service Employees Union and Cambrian College January 31, 1991 (P.C. Picher (unreported)), the majority of a Board determined that pursuant to Article 11, vacation was to be pro-rated for employees who were actively employed for less than 12 months of the year. The majority noted that the only exception to the pro-rating requirement was contained in Article 7 14.2 and that Article did not provide for the accumulation of seniority and service during periods of layoff for employees occupying less than 12-month positions. Nevertheless, as indicated previously, in view of the recent amendment to Article 14.2, the parties agreed that pro-rating vacation entitlement is no longer appropriate for such employees. Turning then to the issue of benefit coverage, it was the submission of Ms. Kuntz, on behalf of the Union, that there is nothing in the Letter of Understanding respecting less than 12-month positions or elsewhere in the collective agreement which would disentitle employees, such as the Grievor, to continued benefit coverage during periods of layoff. In this regard, Ms. Kuntz contended that while the Letter of Understanding permits the College to layoff employees for up to 3 months each year without regard to the~provisions of the collective agreement, this proviso simply alleviates the necessity to follow the layoff procedures set out in Article 15. Ms. Kuntz further contended that the parties have drawn a distinction between employees laid off pursuant to Article 15 and those occupying less than 12-month positions and that for these latter employees, the Letter of Understanding provides that seniority and service accumulate "for all purposes" during periods of layoff. This accumulation, it was submitted, is relevant not only to vacation entitlement but also to benefit coverage. Moreover, Ms. Kuntz contended that employees occupying less than 12-month positions would be 8 substantially prejudiced if they were deprived of benefit coverage while on layoff. She further contended that it is unreasonable for the College to require employees to pay full premiums in order to maintain coverage during this period. In the result, Ms. Kuntz asked the Board to find that the College violated the collective agreement in failing to pay premiums to maintain benefit coverage for the Grievor while on layoff. It was the submission of Mr. Atkinson, on behalf of the College, that as the Letter of Understanding allows the College to layoff employees, such as the Grievor, for up to 3 months "without regard to the provisions of the collective agreement", except as expressly provided, the agreement has no application during periods of layoff. Moreover, although the Letter expressly provides that seniority and service will accumulate, this accumulation is relevant to matters such as wages and vacation but has no bearing on benefit coverage. Accordingly, Mr. Atkinson contended that there is no basis to support the Grievor's claim to continued coverage while on layoff. In the alternative, it was submitted that benefit coverage is provided to employees on the active payroll of the College and that, in ~'most cases, entitlement to coverage is specifically made subject to the eligibility requirements of the plan. All of the plans in issue provide that coverage ceases upon termination of employment which is deemed to occur on the last day of the month that an employee ceases to be actively at work. Moreover, although the 9 College retains the discretion to deem employment to continue in certain circumstances, including periods of temporary layoff, Mr. Atkinson contended that the exercise of this discretion is not %.subject to arbitral review. In any event, it was submitted that, in this case, the College has exercised its discretion to deem employment to continue during periods of layoff for employees in less than 12-month positions provided those employees pay the premiums for continued coverage. In the result, Mr. Atkinson contended that there is nothing in the Letter of Understanding or the substantive provisions of the agreement which requires the College to pay premiums to maintain benefit coverage for the Grievor during periods of layoff. Nevertheless, if there were any doubt about the matter, Mr. Atkinson submitted that the Board ought to consider the past practice of the College which did not involve the payment of premiums for employees, such as the Grievor, while on layoff. In response to this latter submission, Ms. Kuntz contended that the College's past practice is not relevant given the recent amendment to Article 14.2 of the collective agreement. In determining the Grievor's entitlement to benefit coverage while on layoff, the appropriate starting point is the Letter of Understanding which recognizes that there are certain positions within the bargaining unit which require staffing for less than 12 months a year. Where this requirement is identified 10 prior to hiring, the Letter of Understanding entitles the College to layoff employees occupying such positions for up to 3 months each year without regard to the provisions of the collective agreement. The Letter of Understanding further specifies that seniority and service shall accumulate for all purposes during periods of layoff. In the Board's view, although the Letter of Understanding permits the College to disregard the collective agreement in effecting a layoff, it is not sufficiently broad so as to exclude the application of all provisions of the agreement (except as expressly provided) during periods of layoff. Moreover, while both the Letter of Understanding and Article 14.2 expressly provide for seniority and service to accumulate, this accumulation is relevant to matters such as wages and vacation where entitlement is based on service. Benefit coverage, however, is governed by Article 8 of the collective agreement and, as indicated above, for purposes of this case, the relevant benefits are life insurance, long term disability, extended health, dental, vision and hearing care. In this regard, Article 8.1.6, which deals with dental coverage, provides that the College shall pay 100% of the billed premiums for an insured dental plan for eligible full-time employees on the active payroll who have completed their probationary period. In the Board's view, the requirement to be 11 on the "active payroll" excludes the Grievor from entitlement to coverage during periods of layoff when she is not in receipt of salary. As to the remaining benefits, as pointed out by Mr. Atkinson, in the case of supplementary life insurance, long term disability, vision and hearing care, where responsibility for premiums is shared, Article 8 provides that the employee's share is to be paid "through payroll deduction". Although, as suggested by Ms. Kuntz, there are other means by which an employee's share of premiums could be paid, payroll deduction is the manner specified in the collective agreement. In this regard, in Durham College of Applied Arts and Technology and Ontario Public Service Employees Union March 14, 1983 (McLaren (unreported)), the majority of the Board determined that the reference to "payroll deduction" was intended to require the College to make premium payments only for employees in receipt of salary. As a result, the majority concluded that the Grievor, who was absent from work on long term income protection, was not entitled to O.H.I.P. and extended health coverage. In any event, apart from the references to payroll deduction, the provisions of Article 8 dealing with extended health, certain aspects of dental coverage, long term disability, vision and hearing care also specify that entitlement is subject to the "eligibility requirements" of the plan. Accordingly, it is necessary to examine those requirements in order to determine the Grievor's right to coverage while on layoff. Moreover, 12 although Article 8.1.1, which deals with term life insurance, does not specifically refer to the eligibility requirements of the plan, the Article prowides that the College shall pay 100% of the premiums of "the current baSic life insurance plan". In the Board's view, as reference is made to a particular plan; that is, the existing plan, it is equally necessary to have recourse to the plan for purposes of determining the extent of the College's obligation. In fact, the Board notes that a single plan covers life insurance, extended health, vision and hearing care. The relevant provisions of that plan are as follows: Definitions Employee - a person who is employed by the employer on a full-time basis and who is a member of the Support Staff whose terms of employment require him to work more than 24 hours a week or less than full-time Support Staff related employee who the Employer has determined to be eligible under the terms of the Pay Equity Plan. Employment - employment as employee. Termination of Employment - occurs on the last day of the month in which a person (a) ceases to qualify under the definition of employee, or (b) ceases to be actively at work, whichever is the earlier, except that the Policyholder, acting in accordance with the rules which apply equally to all employees within the same classification, may deem that employment continues 3. during any period in which the employee is temporarily laid off, ... Actively at work - an employee is actively at work on any day when he actually works at the employer's business establishment or at some other location where the employer's business requires him to be. An employee is deemed to have worked on a scheduled non-working day if he worked until the en~ of the immediately preceding scheduled working day. 13 INDIVIDUAL TERMINATIONS An employee will cease to be insured on the earliest of the following dates: 1. the date of termination of employment. 2. the end of the period for which the last premium is paid to Sun Life for the employee's insurance. 3. the date of termination of the policy. Similar provisions appear the plans covering long term disability and dental benefits. Apart from the provisions set out above, Ms. Kuntz pointed out that the Employee Benefit Booklet, which summarizes the benefits available to employees, stipulates certain waiting periods to which employees are subject prior to receiving benefit coverage. As these waiting periods are based upon specified terms of employment from the date of hire, Ms. Kuntz contended that service is directly relevant to the matter of entitlement to coverage. Nevertheless, it is noteworthy that both the Booklet and the plans provide that if an employee is not actively at work on the date that he or she would otherwise become entitled to coverage, such coverage will begin only when the employee returns to active employment. Moreover, the eligibility requirements of the respective plans make it clear that coverage ceases upon 14 termination of employment which is deemed to occur on the last day of the month that an employee ceases to be actively at work as defined by the plans. Accordingly, we find that there is no entitlement to coverage during periods of layoff with the exception of a circumstance in which the employee is actively at work for some period during the month, in which case it would appear that he or she is entitled to coverage for the balance of that month. Further, although the plans give the College discretion to deem employment to continue during periods of temporary layoff, we can see no basis upon which this Board could compel the College to exercise that discretion to deem employment to continue for employees in less than 12 month positions so as to oblige the College to pay premiums for benefit coverage during layoffs of up to 3 months. We are reinforced in this conclusion by the award of a Board chaired by Arbitrator MacDowell in Ontario Public Service Employees Union and Loyalist College February 17, 1994 (unreported). The grievance in that case was filed under the academic collective agreement and involved a claim that the College was required to maintain extended health, vision and hearing coverage for employees who were absent from work and in receipt of long term disability benefits. Among other matters, the Board noted that the academic agreement did not contain a provision equivalent to Article 8.1.4 of the support staff agreement which requires the College to pay 100% of the premiums 15 for benefit coverage for persons in receipt of long term disability payments, provided that they were subscribing to such benefits on the date payments commenced. In any event, the Board in Loyalist College also noted that Article 22.02 of the academic collective agreement specified that coverage was subject to the eligibility requirements of the particular plan. On this basis, the Board concluded as follows: Article 22.02 does not create an open-ended obligation to pay premiums in all circumstances, or for all persons who might be considered "employees" under the terms of the collective agreement. The employer is only obliged to make premiums for "employees covered by [the Plan] and subiect to the eligibility requirements of the Plan". We do not think that we can ignore this limiting language, which takes one inevitably to the terms of the Plan. Had the parties intended to make'a particular benefit available to everyone, regardless of employment status, they could have used language like that found in the support staff agreement. Had the parties intended to make a benefit available to all "employees" in a general sense, they might easily have done so without any reference to the Plan, its coverage, or eligibility requirements. But they did not do that. This is not a case in which the employer has sought to diminish its obligations under a collective agreement, or has entered into a collateral contract inconsistent with those obligations. It is clear it could not do so. The employer is required to provide the benefits specified in the collective agreement; but in this case, those obligations can only be defined and understood with reference to the insurance documents that establish "the Plan". The Board in Loyalist College then set out certain excerpts from the insurance plan which are similar to the provisions of the plans in issue in this case and continued as follows: 16 As will be seen, that the insurance contract defines the group of "employees" covered by this benefit plan, and deals expressly with persons who "cease to be actively at work on full time". Such persons - which include individuals on long term disability - are considered to have terminated their employment. But that, in itself, does not preclude their continued coverage and participation in the benefit program. The employer is given the discretion to deem that employment continues provided that it exercises that discretion "in such a manner to preclude individual selection". The union does not challenge the applicability of this definition or point to any other portion of the plan which qualifies its effect. Nor, with respect, was the union able to point to any contractual basis for its submission that the "discretion" contained in the plan could only be exercised jointly by the employer and the union through some collective bargaining process. This is not what the plan contemplates. The clause in question gives the employer a discretion. It does not, on its face, invite a process of collective bargaining, nor was our attention drawn to any other clause in the collective agreement or the plan which would have that effect. The union did not argue that this discretion under the insurance contract could be reviewed by an arbitrator and we do not see any basis for arbitral intervention. In a grievance such as this, the onus is on the union to establish that the employer contravened some article of the collective agreement. We are.not persuaded that the union has met that onus in this case, On the basis of the evidence and the argument put before us, we must conclude that the employer has complied with its obligations in Article 22.02, 22.06, 22.07, as defined and limited by the eligibility requirements in the plan. In this case, the benefit coverage provided for in Article 8 is also subject to the eligibility requirements of the particular plans and the terms of those plans are similar to those in the Loyalist College award. Moreover, the language of the collective agreement in this case is distinguishable from that in Re Andres Wines (B.C.) 17 Ltd. and Brewery & Soft Drink Workers, Local 300 (1977), 15 L.A.C.(2d) 370 (Bird) in which the majority of the Board found that employees were entitled to continued benefit coverage during periods of temporary layoff. In an application for review of that award which was dismissed in Re Andres Wines (B.C.) Ltd. and United Brewery and Distillery Workers, Local 300 (1977) 16 L.A.C.(2d) 422 (B.C.L.R.B.), the Board noted that entitlement to fringe benefits under the collective agreement was expressed in "broad and vague language". The Board also noted that there was no indication on the face of the agreement that the parties had turned their minds to the situation of employees on layoff, nor was there any consistent practice to Support the deficiency in contract language. In this case, in contrast, there is a 6onsistent past practice which favours the interpretation advanced by the College. Nevertheless, in the Board's view, it is unnecessary to consider this practice as the collective agreement requires recourse to the respective benefit plans which provide that coverage ceases on termination of employment which is deemed to occur on the last day of the month that an employee ceases active employment. As there was no suggestion that the College failed to pay premiums to maintain coverage to the end of the month that the Grievor ceased active employment, we cannot conclude that she 18 was otherwise entitled to coverage while on layoff. Accordingly, the grievance is dismissed. DATED AT TORONTO, this 26th day of July, 1995. Chair "Hugh John Cook" College Nominee Dissent to Follow Union Nominee