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HomeMy WebLinkAboutRose 91-04-29IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (The Union) ANU IN THE MATTER OF THE MEG ROSE .GRIEVANCE (88A683) ~AND A UNION GRIEVANCE (88A684) BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, Employer Nominee Jon McManus, Union Nominee APPEARANCES: For the Employer: Janice Baker, Counsel Glenn Pevere, Personnel Director Jenny Balasak, Personnel Officer For the Union: Nelson Roland, Counsel Susie Vallance Pat Clay Meg Rose 'AWARD This arbitration concerns an individual grievance of Ms. Meg Rose, a Clerk Supply C at Niagara College, and a union grievance filed by Local 243 of the Union, both dated February 12, 1988. The substance of both grievances is that the College allegedly misapplied the Letter of Understanding dated August 27, 1981 entitled "Less than Twelve Month Positions". In particular, the College had prorated the vacation entitlement of Ms. Rose, and apparently all other employees at the College covered .by the Letter, on the basis of actual time worked during the year. In the case of Ms. Rose, who is employed on a ten-month basis, her 15 day nominal vacation entitlement, based on her years of continuous service with the College, was reduced to 12.5 days, or 10/12s of her nominal entitlement. The provisions of the collective agreement to be considered in this matter are as follows: 11. VACATION 11.1 Entitlement An employee on the active payroll'of the College who has completed one (1) year"s continuous service on June 30, shall be granted fifteen (15) working days vacation with pay. An employee on the active payroll of the College who has completed seven (7) years of continuous service on June 30, shall be granted sixteen (16) working days vacation with pay, and an additional working day of vacation for each additional year of completed service up to an aggregate of twenty-five (25) working days after sixteen (16) years. Effective June 30, 1989, persons who have completed nine (9) years of service shall receive twenty (20) days of vacation with pay instead of the amount calculated above. Persons with ten (10) or eleven (11) years of continuous service shall also receive twenty (20) days vacation with pay. Employees with twelve (12) years and more of - 2 - continuous service will receive an additional working day of vacation for each additional year of continuous service over eleven (11) up to a maximum of twenty-five (25) days after sixteen (16) years. 11.2 Calculation of Continuous Service In determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement: - an employee's previous uninterrupted service with the College immediately prior to and consecutive with its establishment as a College of Applied Arts and Technology shall be included; - an employee who, for any reason, has less t. han twelve (12) full months of active employment during the one (1) year period immediately prior to June 30, in any year, shall receive a lesser vacation with pay on a pro rata basis under the schedule of vacation set out in this Article, subject to any accumulation of service under Article 14.2. Active employment means actual attendance at the work place and the performance of work, but includes absence from work for vacations and holidays, or illness or maternity leave for up to six (6) calendar months during the term of the Agreement, or adoption leave for up to six (6) weeks during the term of the Agreement. 14. JOB SECURITY 14.2 Accumulating Seniority Seniority and service shall accumulate for all purposes under the Collective Agreement for a period of up to, but not to exceed, six (6) calendar months during the term of this Agreement during any leave(s) of absence granted, with or without pay, and during the first twelve (12) months of absence on Workers' Compensation, pursuant to the provisions of this Agreement. This provision shall not apply in the case of probationary employees who shall be required to complete six (6) months of active employment to attain seniority unless waived by the College. - 3 - LESS TH~N 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 applica- tion. 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. We received, in the course of three days of hearing in this matter, a considerable amount of evidence relating to the negotiating history of both clause 11.2 and the Letter of Under- standing. We propose to deal with the salient aspects of this evidence, although in our view the provision can adequately be interpreted without evidence of an extrinsic nature. However, since both parties expressed the view that there was at least the possibility that the provisions were ambiguous, and since what occurred at the time is central in many ways to their respective understandings of this provision, we have decided that the better course is to review what the evidence does and does not do by way of assisting us in our interpretation. The Letter of Understanding first came into the collec- tive agreement during the 1978 negotiations for a 1978-79 collec- tive agreement. The proposal came from the Council of Regents for the Colleges, and was apparently intended to formalize certain practices which had grown up across the system of employing a few people on ten-month appointments, using various mechanisms to accommodate this form of employment. Strictly speaking, the collective agreement at the time would have required that such employees either voluntarily take a leave of absence for this period, or that they be laid off. If they were laid off, they would subsequently be entitled to exercise their seniority, and it is possible that bumping might result. In the course of discussions, a draft Letter of Under- standing was prepared and presented to the Union at negotiations on June 26, 1978. The Union took time to consider this document, and after some discussion and certain assurances, it was finally approved. It was then placed in the collective agreement. Although there have been amendments to the second paragraph of the letter, the first paragraph, which is here material, has remained the same since that time except for minor editorial changes necessitated by other changes to the collective agreement. Evidence was given on behalf of the Union by Ms. Susie Vallance, a Union Vice-President, who was the recorder for the Union negotiating team at the time. Her notes for a meeting the date of which is uncertain, which logically would have been - 5 - sometime between June 26 and July 18, 1978, show a list of points in relation to the Letter of Understanding. It is not perfectly clear on the face of the notes, but Ms. Vallance testified that these points would have been made by the Council of Regents' spokesperson, Mr. Tom Storie, Included in her notes are the observations "no loss of seniority" and "full vacations". These points are not further elaborated in the notes, and Ms. Vallance understandably has no direct recollection of what else might have been said at the time. Apart from this single notation, there is no other reference anywhere in Ms. Vallance's notes to suggest that this issue was ever discussed between the parties. The College called as a witness Ms. Gerry Zubyk, Director of Personnel Services at St. Clair College since June 1980, and involved as the recorder for the management negotiating team in 1978-79. Her notes suggest that a conversation not unlike that recorded by Ms. Vallance took place about the middle of June. While she records Mr. Storie saying a number of the things in the list set out in Ms. Vallance's notes, there is no record in her notes of any discussion about vacation entitlement. On this basis, the Letter of Understanding was agreed between the parties, apparently with no other discussion on the issue which is central in this arbitration. When the collective agreement was finally signed, much later after a strike, Ms. Zubyk, who was at the time on the staff of the Ministry of Colleges and Universities, prepared spread sheets setting out the "intent", although obviously from the point - 6 - of view of the Council of Regents, of each provision. In relation to this issue, the spread sheet says "vacation, each year, will be prorated in accordance with [what is now clause 11.2]". During the next round of negotiations, there were further discussions in relation to the Letter of Understanding on June 4, 1979. These discussions involved Mr. Gerry Griffin, the Union's chief negotiator, raising concerns about the operation of the Letter, in particular at certain Colleges. Ms. Zubyk's notes ascribe to Mr. Griffin the following: "Disagreed with our intent set out on spread sheets" There is no way to tell if, whatever this disagreement was, it was in any way related to vacation entitlement, and there is no other reference to the vacation issue in the notes of either Ms. Zubyk or Ms. Vallance. Mr. Griffin, for his part, testified that he could not recall ever seeing the spread sheets. The other negotiating issue which has an impact on this arbitration took place during the 1982-83 negotiations. This was a proposal to modify what is now Article 11.2 of the collective agreement, which had hitherto included the provision for prorating vacation, but not the definition of active employment which now appears at the end of the clause. The definition was proposed by the management negotiating team, and was modified at least twice during discussions prior to the adoption of current language. Ms. Bev Allen, who was chair of the Union negotiating team at the time, does not recall any discussion of the issue of prorating vacations for employees covered by the Letter of Understanding at this time. - 7 - Her evidence was that the Union simply assumed that this issue was covered by the Letter of Understanding itself. As will be obvious from this recitation, the evidence is very far from reaching the standard which is required of extrinsic evidence to be dispositive of the issue of the interpretion of a clause of the collective agreement. There is not here anything which shows a shared understanding between the parties of a particular meaning to be ascribed to the provision, nor is there any statement coming.anywhere close to a representation which could constitute the basis of an estoppel. Even the reference set out in Ms. Vallance's notes to "full vacations", which is the only reference arguably relevant to this issue, is not entirely unambiguous even in its own terms, nor is it perfectly clear who said it or in what context. In our view, therefore, the negotiat- ing history is simply not helpful in resolving the issue. There was also some evidence placed before us of past practice at this College, where apparently vacations have been prorated consistently since the Letter of Understanding was first used to constitute a reduced term appointment at the College, with no dispute or grievance by the Union until the present grievances were filed. Because of the view which we take of the interpreta- tion of the provisions, however, we do not need to consider whether or not this past practice is sufficient to constitute either an aid to interpretation or the basis of an estoppel against the Union. As we see it, the difficulty with the Union's argument is that it confuses three concepts. A collective agreement provides for seniority, which has a number of applications not here relevant. It also provides for service, usually stated as continuous service, which under clause 11.1 is used to calculate the nominal vacation entitlement of employees, based on the number of years of continuous service, which concept is somewhat expanded by the first subclause in the first paragraph of clause 11.2. Neither of those concepts, however, is what is used under this collective agreement to calculate the actual vacation entitlement for someone to whom the second subclause of the first paragraph of clause 11.2 applies. There, the operative concept is specifically called "active employment'', obviously to distinguish it from "continuous service". At the time when the Letter of Understanding was first agreed upon, active employment was undefined. Since that time, it has been defined by the parties to mean "actual attendance at the work place and the performance of work", which obviously would not apply to the two month layoff period of someone covered by the Letter of Understanding. The definition is subject to a number of exceptions, but the list of exceptions does not include layoff under the Letter of Understand- ing. In our view, the Letter of Understanding preserves only accumulation of seniority and service. It says nothing about the active employment of employees who are covered by the Letter. Under this agreement, service and active employment are different concepts. An employee's right to a nominal vacation entitlement is based upon years of completed continuous service, and for that purpose absence on layoff under the Letter of Understanding does not affect the accumulation of service. On the other hand, prorating of the nominal vacation entitlement to an actual entitlement under the second subclause of clause 11.2 depends upon active employment, which is defined in that clause and not in any way altered by the provisions of the Letter of Understanding, which does not anywhere mention the concept, although the concept was used in the collective agreement at the time the Letter was negotiated, and the parties must be taken to have been award of its significance. On the very face of the language, therefore, we think that the College's interpretation is right. In the absence of anything in the negotiating history to alter that interpretation, and indeed in the absence of any real demonstration that the language is ambiguous on its face so as to permit us to use the negotiating history as an aid to interpretation, we are of the view that the grievances must be dismissed. DATED AT TORONTO, this 29th day of APril, 1991. Ke~airman I concur "R.J. Gallivan" R.J. Gallivan, Employer Nominee I dissent; see attached "Jon McManus" Jon McManus, Union Nominee DISSENT In A Matter of an Arbitration Between: Employer Niagara College - and - Union Ontario Public Service Employees Union. File: 88A683 Meg Rose 88A684 Union Grievance. It is with regret that I am unable to agree with the majority award. In the circumstances I must issue this Dissent. The majority award sets out the agreed facts, relevantprovisions of the Collective Agreement and the respective positions of Counsel for the Union and College. The issue is whether the Letter of Understanding precludes the employer from prorating vacation entitlement for em- ployees whose positions fall within the terms of the Letter. If as the majority sets out at page nine (9) "In the absence of anything in the negotiating history to 'alter that interpretation, and indeed in the absence of any real demonstration that the language is ambiguous on its face so as to permit us to use the negotiating history as an aid to interpretation." We then are obliged to determine the purpose of the Letter of Understanding on its face in order to construe the meaning of the terms contained within. We know however that the Letter dated August 27, 1981 post dates what is now Article 11.1 in the Collective Agreement. We know this from the Sir Sanford Fleming award relied on by counsel to the Union, which delt with a similar article in an earlier version of the Collective Agreement between the Union and the Ontario community Colleges. The Letter clearly allows the College to lay off employees in positions where their services will not be required during the summer months when no teaching occurs. Further, the Letter allows to the College to effect .these layoffs without regard to the obligations imposed by Article 15, dealing with layoff procedures. In other words, in the absence of the Letter of Understanding, the College would be con- strained by the layoff provisions in Article 15 if it wished to effect the result of reducing the number of employees working during the summer months where the workload is reduced. On this analysis, which appears self evident from a reading of Article 15 and the Letter of Understanding, the Letter can be viewed as nothing other than a concession on the Union's part to forego its strict rights under the Agreement in an attempt to accommodate the College~ seasonally fluctuating labour requirements. On this con- struction of the purpose behind the letter, I draw two conclusions. Firstly, that the parties meant to preserve all other rights and obliga%ions under the Agreement with the exception of those in Article 15 dealing with layoff. Secondly, that the Letter and the Collective Agreement should be strictly construed so as to preserve the rights and obligations between the parties as they existed prior to the effective date of the Letter. In this regard it is important to note that Article 11.1 pre-dates the Letter. This conclusion is supported by the language contained in the Letter which describes the purpose of accumulated service and seniority. The Letter states that "seniority and service shall accumulate for all purposes under the Collective Agreement", notwithstanding the fact that the layoffs contemplated may be effected by the College free of the obligations imposed by Article 15. Clearly, if seniority and service continue to accumulate for all purposes during the period of layoff, one of the purposes, arguably the most important, is to provide a basis for entitlement to vacation time. If this is the purpose of the bargain struck between the parties as represented by the Letter of Agreement, one must conclude that the parties meant'to preserve all other rights accruing to the Union with the exception of those under Article 15. Assuming this purpose, the Letter of Understanding should be strictly construed so as to preserve the Union's rights and the College's obligations excepting those arising under Article 15. In the absence of explicit language which would provide for the pro- rating of vacation time for employees whose positions fall within the terms of the Letter, there should be no pro-rating. Having found no explicit language to this effect in the Collective Agreement, I would have allowed the grievance.