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HomeMy WebLinkAboutOverholt 91-02-06 IN THE MATTER OF AN ARBITRATION CAAT S L. 137 BETWEEN: ST. CLAIR COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The College) ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF DUNCAN OVERHOLT, #90B376 ~ BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIRMAN JANE GRIMWOOD, UNION NOMINEE DAVID GUPTILL, 'COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: P. MORAN, COUNSEL AND OTHERS APPEARANCES FOR THE UNION: NELSON ROLAND, COUNSEL AND OTHERS A HEARING IN THIS MATTER WAS HELD AT WINDSOR ON DECEMBER 6, 1990. AWARD A grievance dated January 19th, 1990 was filed under tbe provision of a Collective Agreement in effect between the parties in which it is claimed that the College is in violation of Article 10.4 of the Collective Agreement whiCh is as follows: "An employee whose regular Schedule is other than Monday to Friday shall be entitled to a lieu day off where a holiday as defined in Article 10.1 falls on his/her regular day off. Where such holiday falls on a regularly scheduled working day and the employee is required to work, he/she shall be paid in accordance with Article 6.2.5, or, if he/she so elects, he/she shall receive time and one-half for'all hours worked and in addition, a lieu day off with pay. Where the employee is entitled to a lieu day or elects for a lieu day, such day shall be designated by the College at a time satisfactory to the employee and acceptable to the College." There is no dispute as to the Board's jurisdiction in this matter and as to the facts which gave rise to the issue. The grievor works a regular schedule other than Monday to Friday as a Stationery Engineer. The work schedule is on a regular pattern of either a seven or eight day schedule for the three engineers. The grievor was not scheduled to work on December 27th, 1989 in accordance with that schedule and was not paid for that day. The grievor is paid for 40 hours for each week regardless of the number of days actually worked in the week. -The grievor was therefore paid in the week commencing December 24th for 40 hours as - 2 - is usual, but it is his claim that as December 27th falls within the definition of a holiday under Article 10.1.1 and as the grievor had that day off in his'work schedule, he should have received a lieu day under Article 10.4 which is his claim along with the holiday pay due to him because he worked his normal schedule in holiday period. Ail of the engineers have the same working schedule of a three week shift repetition in which an employee works four, five or six days but averages five days a week and is paid for 40 hours in eaCh week. It is the position of the College that Article 10.4 does not apply in that the reference to Article 10.1 in Article 10.4 does not include 10.1.1 which is a separate paragraph of Article 10. Those sections are as follows: 10. 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 maximum of eight (8)) for the holidays set out following. It is understood, however, that employees who, as of the date of observance of any of the holidays have. not yet completed thirty (30) calendar days of continuous service but subsequently successfully complete thirty (30) calendar days of continuous service shall nevertheless be entitled to holiday pay in accordance with the provisions herein: Good Friday, Victoria Day, Dominion Day, Civic Holiday, I ~hour Day, Thanksgiving Day. 10.1.1 Holiday December 25 --January 1 In addition, eligible employees shall be granted the holiday period December 25 to January 1 inclusive without loss of straight time hourly earnings for regular hours scheduled during such period. The position of the College is that the grievor is entitled to be paid for 40 hours each week and time and one-half for each of the days worked on a holiday. In that week the grievor was paid three days of straight time and three days at time and one half with two days in lieu, recognizing December 2§th and 26th as holidays which the grievor did not work. The issue is whether the grievor is entitled to a lieu day for December 27th under Article 10..4 and holiday pay. 'It is the submission of the Union that while the grievor worked only four days in the week commencing December 24th, the schedule is regulated through the three week cycle and lieu days are over and above the 40 hour week so that there is no reason to grant a lieu day for December 25 and 26 which were days not worked by the grievor in the holiday period but not for December 27th. Holiday pay is part of an employee's pay package'arising from the fact that the holidays exist in the agreement and on which work is not required. Article 10.1 is divided between employees who have completed 30 days of continuous service and those who have not with a different entitlement for each class of employee. The grievor falls within the condition of those'who have completed 30 calendar days of continuous service and is entitled to his holiday pay as set out in that article and the continuation in. subsection 10.1.1 which is distinguished only as between those who have thirty and those who do not have thirty days of continuous service. Therefore, in its submission, Article 10.1.1 is an integral part of 10.1 and is not set out as a separate provision which could have - 4 - been made clear by the parties if he had for example marked it as 10.2 to distinguish it from the other terms of Article 10. Therefore, in its submission, the reference in Article 10.4 to Article 10.1 includes Article 10.1.1. December 27th was a regular day off for the grievor under his work schedule. Under Article 10.1.1 that is a holiday as it falls within the holiday period and therefore he should obtain a lieu day off under Article 10.4 as he was not regularly scheduled to work on that day. Working on holidays is covered under Article 6.2.6 which is as follows: 6.2.6 Woridng on Holidays Authorized work performed on a holiday or during the ,holiday period as defined in Article 10.1 and Article 10.1.1 (or on the day designated as such under Article 10.3) shall be paid at time and one-half for all hours worked. In addition, the employee shall be entitled to holiday pay in accordance with Article 10.1 and Article 10.1.1 and subject to Article 10.2. It was submitted under that Article if an employee works on a holiday or during the holiday period, he is entitled to time and one-half plus the holiday pay. Article 10.4 provides a lieu daF where a holiday falls on his regular'day off. Reference was made to previous collective agreements which indicated that Article 6.2.6 had been changed by the inclusion of the reference to 10.1.1. It was submitted that the 1987-89 collective agreement encompassed all of 10.1 including subsection 10.1.1 so that a specific reference was put into 6.2.6. In its submission, the College removed a holiday provided by Article 10.1.1 from the grievor who was paid straight time for December 27th which is a repugnant interpretation as it leads to an absurd result in-conflict with the terms of the collective agreement which can be avoided by the inclusion of Section 10.1.1 in Article 10.1. It was further submitted that where the general entitlement provision is contained in a predecesor collective agreement to the agreement where there is a specific disentitlement, that condition must be limited to that entitlement and does not disentitle other rights so that Article 6.2.6 is limited to authorized work on a holiday and does not limit the operative effect of Article 10.4. Article 6.2.6 does not rectiSy the prgblem because it does not refer to Article 10.4 the intent of which is to equalize benefits by providing lieu days to persons who are not scheduled to work. It was the submission of the College that the Union's concerns were rectified by the inclusion of Article 10.1.1 in Article 6.2.6. The College position taken in its response to the grievance was that as Article 10.4 does not make reference to Article 10.1.1, it had complied with the agreement by paying th~ grievor for December 26th, 27th and New Year's Day in accordance with the Employment Standards Act.. The grievor was working his regular work schedule during the- Christmas period. Because of that, such work does not apply to single days in the holiday period provided by Article 10.1.1 and ArticIe 10.4 does not apply. Article 10.1 excludes those who have not completed thirty calendar days of work but it does deal with specific single day holidays as contrasted with a holiday period in Article 10.1.1. Employees who work Monday to Friday in that period would get the holiday period without loss of regular pay for the period and not on a day by day basis. The engineers are paid for 40 hours each week regardless of the number of days worked on this schedule which repeats in three weeks of four, five, six days of work in a week with the effect through balancing, of payment for 40 hours in a week. The grievor's schedule is other than Monday to Friday but the College position is that it is not the intent of the parties to Provide a different level of benefits for those not on a Monday to Friday work week, i.e., providing eight days of holidays. In the 1983-84 collective agreement Article 10.4 picks up Article 10.1 only and not what was previously excluded and left the Christmas period as a separate clause so that the parties have agreed that Article 10.4 - 7 - only applies to the specific holidays listed in 10.1 and not to the Christmas holiday period which had not been changed through the subsequent collective agreements. For the week commencing December 24th the grievor was paid two lieu daYs for December 25 and 26 and received six days pay plus three days at time and one-half on December 28th, 29th and 30th. In its submission Article 10.4 does not apply in this period to the grievor which would create a conflict in interpretation as being contrary to Articles 10.1 and 6.2.5. The College submitted that its interpretation was consistent with the. history of the provision of level benefits to those who work on a Monday to Friday schedule and to the others. The grievor works a regular schedule rotating the three shifts on a four, five and six day week with an average of 80 hours bi-weekly and is paid for a 40 hour'week. There is no question that schedule applied in 1989. It occurred therefore that in the period of December 25th to January 1st the grievor worked five days, four of which were December 24th, 28th, 29th and 30th. The grievor did not work on December 25, 26 and 27. He was, according to the facts, given lieu days for December 25 and 26 but not for December 27 which led to this claim. Article 10 applies to holidays and Article 10.1 sets out the employees entitlement. The grievor has completed thirty calendar days of continuous service and will under that provision receive his regular pay for the enumerated six holidays. The Christmas holidays are dealt with in Article 10.1.1 as a "holiday period" which is granted "in addition". That phrase must be given meaning and is that the - 8 - holiday period between December 25th to January 1st is added to those six holidays provided by Article 10.1 to which the eligible employees are entitled so that they receive 14 holidays made up of six individual days and eight days in a specific period. The grievor is entitled to those holidays as an employee in th~ bargaining unit and covered by the collective agreement. The grievor's schedule of work is other than Monday to Friday so that under Article 10.4 he is entitled to a lieu day "where a holiday as defined in Article 10.1 falls on his day off". That is the nub of this dispute whether this applies to the Christmas period in Article 10.1.1. We must conclude that it does because as noted above, the grievor is entitled to fourteen days of holidays under the agreement and that right is not otherwise removed by the fact of his work during the Christmas period. The reference in Article 10.4 to 10.1 must include its subsection 10.1.1 as it is directly related by the phrase "in addition". The entire holiday entitlement to an employee cannot be determined unless the article 10.1 is applied as a whole, otherwise because of the particular work schedule of the engineers, they could be deprived of the benefit of the Christmas period holiday when they work in that period, while others receive those holidays. The holiday benefit cannot logically be confined to the six individual holidays in Article 10.1 for the application of Article 10.4. The grievor did not work on December 27th because it was his regular day off in his regular work schedule. That day is part of the Christmas holidays to which he is entitled in the same manner as December 25 and 26 which are equally not specified in Article 10.1. As the grievor is entitled to the holidays set out in Article 10.1.1, he is entitled to a lieu day off for December 27th as claimed. - Article 6.2.6 applies to payment for work on such holidays as set out in Article 10 and had been amended by the parties to specify Article 10.1.1 for work on holidays and to be clear the employes would be paid for each day of work. That change for that purPose does not mean that Article 10.1 and 10.1.1 provide separate benefits which are to be treated differently under Article 10.4. Without that reference in Article 6.2.6 it was possibie that an eployee who was not regularly scheduled to work during the holiday period but did work on December 27th, as Article 10.4 did not apply and Article 6.2.6 referred only to Article 10.1 for pay on those holidays would thereby exclude pay for work on for example, December 27th. The intent of this. Article is to pay for work on holidays so to be clear that all holidays were covered under Article 10.1 for such purpose, Article 10.1.1 was referenced for pay purposes. The right however, to a holiday benefit which is part of the employuees' pay package cannot be removed without specific language to that effect. Article 6.2.6 does not refer, to Article 10.4 by which holidays under 10.1 are provided for those employees who are required to work other than a regular schedule. While the parties have been careful to combine both sections of Article 10.1 for the purpose of Article 6.2.6 the absence in Article 10.4 of the reference to the subsection of Article 10.1 - 10 - does not preclude the application of that term as otherwise the result would be inconsistent with the contractual benefits provided to the grievor under Article 10. The provision for a holiday period first appeared in the 1979-81 collective agreement in Article 6.01 (a) and (b) which are the same as the present Articles 10.1 and 10.1.1. The only difference between then and the current agreement is the numbering which was changed to Article 10 in the 1983-84 collective agreement. The only difference from that agreement and the next two agreements prior to the current collective agreement was that Article 10.1.1 was indented under Article 10.1 and now appears as a regular paragraph. In our view that history of the provision supports the conclusion which we have reached that it was intended by the parties 'that Article 10.1.1 was not a separate clause but part of Article 10.1 as its subsection to provide additional holidays. The reference in Article 10.4 to 10.1 therefore must include both holiday benefits in order that all the employees in the_ bargaining unit are treated equally as to the holiday entitlement in the agreement. The reference to "eligibile .employees" does not exclude employees who are required to work in.the holiday period as defined in Article 10.1.1 as part of their regular duties. Wednesday, December 27th was the grievor's regular day off as set out in his regular schedule of work and fell on one of the holidays provided in the holiday period in the same manner as Christmas Day and Boxing Day for which he was granted lieu days. There is no support in the agreement for the College to grant'lieu days for those two- days but deny a lieu day for December 27th as the reason for the lieu day'application is the same for each of those three days under Article 10.4. Under Article 6.2.6 if an employee works on a holiday or during the holiday period,' the employee is entitled to holiday pay and time and one-half for all hours worked which does not mean that the employee would be required to work all of the holiday period in order to obtain overtime payment. It is clear that payment would be applicable to each day of work during that period. Thus while the parties have agreed to a block of time as the Christmas holiday period, each of the days for the purposes of pay within that period is treated separately. In our view that supports the application of Article 10.4 in these circumstances and the grievor's claim for a lieu day for December 27th and holiday pay. Having regard to the facts and submissions in this matter, the Board finds that the Union established that the College was in violation of Article 10.4 in failing to allow the grievor a lieu day for December 27th, 1989. It is our award therefore that the grievance succeeds. DATED AT OAKVILLE THIS ~ ~ ~~ 1991 DAY OF ,. . HO~~~D. ~BROWN, CHAIRMAN JANE GRIMWOOD, UNION NOMINEE DAVID GUPTILL, COLLEGE NOMINEE I hav~ reviewed the decieion of my colleagues, however, with respect I must dissent fro~ ~he ma~ority. The p~e~ise on which the award is based is that the agreement provides for fourteen holidays. I believe that to be incorrect. Under Article 10.~, all employees are entitled to six specific holidays specified in the agreement. In addition, under Article 10.1.1, employees are entitled to eight days off without loss of pay. This is a holiday period between December 25 and January 1. It is listed as a separate subsection of 10.1 and should be dealt with differently. Otherwise, what possible reason could the parties have had for making it a distinct and separate subsection. This means that employees will have five or six additional work days off without loss of pay, the other two or three days needed to make uD the eight day period are non working days, i.e., Saturday and Sunday. If Christmas and New Years fall on a Saturday or Sunday, the employees get five working days off without !os~ of pay. If Christmas and Ne~ Years fall on Monday to Friday, employees get six working days and two weekend days, or five working days and three weekend days. And, that adds up to six additional holidays or five additional holidays, not eight holidays. Total holiday entitlement, therefore, is either eleven days or twelve days, but it is not fourteen days, in any particular calendar year. In essence, the grievor, like all others during the Christmas period of December 25 to January 1 inclusive, is entitled to a maximum of six working days off without loss of pay. If, however, the grlevor works in the period, he is entitled to be paid, in addition to his regular pay, one and one half times his rate for all hours worked. The question of lieu days in Article 10.4 applies only to the holidays specified in 10.1 and does not apply to the Christmas period under Article 10.1.1. The history of the numbering of the Article 10.1.1, formerly 6.01(b), and 10.4, formerly 6.03(b), which is clearly and properly before the Board, makes it clear that the parties never.intended the lieu day provisions of 10.4 (formerly 6.03(b)) to apply to this Christmas period. Applying the lieu day provision as the union suggests creates, rather than alleviates, a significant discrepancy in the level of benefits between employees. For example, if the grievor would normally work six days in the peFiod and the College were to give him those six days off without loss of 9aY as required by Article 10.1.1, is he then also entitled to an additional two lieu days for the other two days he would normally have off in that period? I think not. On the union's analysis, they say he is. If they are right and he is entitled to those two additional lieu days, then, when he has the Christmas period off, he will receive two more paid holidays than every other employee in the bargaining unit. This simple fact is clea~ly at odds with the majority's statement that: "The entire holiday entitlement to an employee cannot be determined unless Article 10.1 is applied as a whole, otherwise because of the particular work schedule' of the engineers they could be deprived of the benefit of the Christmas period holiday when they worked in that period while others received those holidays." In my view, the grievor is entitled to the Christmas period off without loss of pay. If he has the entire period off and he is without loss of pay, he is not entitled to additional lieu days. Similarly, ii he works some of the days during that Christmas break period, he is entitled to pay, at time and a half, for all hours worked and entitled to his regular pay-covering the Christmas break period. If he also receives a number of scheduled days off during the period, he is not entitled to 1leu days for those scheduled days off in that he has received his regular pay for that period and those days off are his normal days of~, just as Saturday and Sunday are the normal days off for those employees who work a Monday to Friday week. Using the reasoning of'the majority, if the grievor's rotating shift schedule resulted in his coincidentally being scheduled of~ on the Saturday and Sunday during the Christmas holiday period, he would-be entitled to lieu days off. For those reasons, I would dismiss the grievance. Da~w-.~ ~uptill