Loading...
HomeMy WebLinkAboutOverholt 92-06-25 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION - and - ST. CLAIR COLLEGE Grievance of D.~ OPSEU File No. 91C126 Before: M.G. Mitchnick - Chairman Jon McManus - Union Nominee George H. Metcalfe - Employer Nominee Appearances: For the Union: Nelson Roland, Counsel ~he~ ry ~h~ Duncan Overholt For the Employer: Mo Patrick Moran, Counsel Kevin Mailloux Hearings held in Windsor on December 2, 1991 and April 9, 1992 AWARD This matter involves two grievances by Mr. Duncan Overholt, one of the College's stationery engineers, concerning the application of the "holiday" provisions of the parties' collective agreement. Those provisions 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, Labour 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. 10.2 Restriction In order to qualify for payment of the holiday concerned, the employee must work the full scheduled hours of work on the work day immediately before the holiday and the full scheduled hours of work on the work day immediately following the holidays or holiday period unless absent for all or part of such days for reasons satisfactory to the College. 10.3 Substitution When a holiday or holidays as defined in Article 10.1 falls on a Saturday or Sunday the College shall designate the preceding Friday and/or Monday following as a substitute day off with pay except with respect to employees on other than a regular Monday to Friday schedule. - 2 - 10.4 Day Off In Lieu 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 6.2.6, 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. 10.5 Holiday During Vacation When a holiday falls within an employee's vacation period, his/her vacation shall be extended by one (1) day either at the beginning or end of this vacation unless the employee requests a lieu day off which is on a date satisfactory to the College. And completing those provisions is Article 6.2.6 of the agreement: 6.2.6 Working 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. The two grievances raise different issues under the above provisions, but in fact turn out to be somewhat related, and indeed serve to place the whole matter in perspective. The first grievance claims that Mr. Overholt was improperly denied - 3 - "lieu" days for his non-scheduled work days between Christmas and New Year's, under the provisions of Article 10.4. The engineers in the powerhouse do not.work a Monday to Friday week, but rather work a repeating Master schedule of seven or eight consecutive days and receive their forty hours' pay per week on the basis of their weekly "average" of hours. For this branch of the case the parties made reference to this "regular" Master schedule, and on the basis of that the grievor would have been scheduled to work in the "Christmas week" in the year in question, 1990, on December 25, 26, 27, 31 and January 1, and off on December 28, 29 and 30. This very matter went to arbitration over the Christmas period for the preceding year, 1989, and resulted in an arbitration award by Mr. Howard Brown in favour of the grievor. The College in its opening statement was quite direct about the basis upon which it nevertheless appears before the present board on exactly the same issue: the "Brown" award got it wrong. That kind of approach, particularly where the matter involves the identical issues under the identical collective agreement (and even the same College) raises important institutional questions about the extent to which a party unhappy with a legal result should be in a position to simply re-litigate the matter in the hope of achieving a more-to-its-liking result. If the matter involved exactly the same facts (i.e., the same claim for Mr. Overholt based on the 1989 Christmas holiday period), it would of course be covered by the principle of res - 4 - judicata. In the present situation, however, it is really a question of arbitral deference, and the general approach of arbitrators when faced with that type of situation is aptly summed up in, for example, Canadian Johns-Manville (1976), 12 L.A.C. (2d) 266 (Burkett), at page 268: ... It is acknowledged that the doctrine of stare decisis does not apply in labour arbitrations; one board of arbitration is not bound by the decision of another as it relates to the same issue even if that issue has been decided within the context of the same bargaining relationship. This is not to say, however, that arbitrators are not and should not be persuaded by prior decisions dealing with similar situations. In a general sense arbitral jurisprudence plays a constructive role in the collective bargaining process and performs a positive directory function. A series of decisions which lend a consistent interpretation to a piece of contract language fix the meaning of that language in its labour relations context and provide the parties with a high degree of certainty as to the precise meaning of the language which they are incorporating into a collective agreement thereby minimizing both the possibility of future disagreement and future "litigation". In this general sense arbitral jurisprudence also underscores the consequences of not including certain language in a collective agreement (i.e., contracting out) which also minimizes the possibility of future disagreement. In a more specific sense, arbitrators are acutely sensitive to the need for consistency and predictability within a particular collective bargaining relationship and are therefore loathe to upset the award of a predecessor board dealing with an identical issue between the same parties unless the predecessor board has been wrong. A previous finding on the same issue imparts an obligation to an arbitrator who wishes to depart from it to clearly analyze the shortcomings of the previous award and lay a solid foundation for the departure (see Re Air Canada and Canadian Air Line Employees Assoc. (1975), 10 L.A.C. (2d) 113 (O'Shea); Re Electric Reduction Co. of Canada Ltd. and Office & Professional EmDloyees Int'l Union (1973), 2 L.A.C. (2d) 87 (Hartt); Re R.C.A. Ltd. and Int'l Union of Electrical Workers, Local 542 (1973), 2 L.A.C. (2d) 143 (Rayner)); to do otherwise undermines - 5 - the binding nature of the adjudication, creates uncertainty and encourages resort to arbitration as an alternative to negotiation. Although the doctrine of stare decisis does not apply to labour arbitration, previous awards which have decided the same issue between the parties are, in the absence of an inherent flaw in law or reasoning, at least persuasive if not conclusive. (See the second Weiler award which refers to Re Amalgamated Meat Cutters, Local 125 L, and Wickett & Craig Ltd. (1963), 13 L.A.C. 363 (Arthurs); Re United Electrical Workers and Northern Electric Co. Ltd. (1971), 23 L.A.C. 241 (Gorsky); and Ontario Hydro and Canadian Union of Operating Engineers (1974), unreported (Brandt).) We agree with those comments, and simply note that it is in no one's interest, particularly in dealing with a "master" collective agreement like the present, to have one arbitrator too ready to sit in "appeal" on another one. If the result arrived at by the initial arbitrator is a "possible" one under the terms of the parties' collective agreement, or is "arguable", then that interpretation of the collective agreement should be accepted, to be addressed in contract negotiations if anywhere, rather than in repeated litigation. (In fact, it is acknowledged before us that the parties have in the most recent round of negotiations to renew the collective agreement agreed to a change in the numbering of Article 10, in accordance with the position advanced by the College here, and in the prior case before Mr. Brown.) In that prior case for the 1989 Christmas period, the effect of the Master schedule was to show the grievor being off on December 25th, 26th, and 27th. The College accorded the grievor his "lieu" day for the 25th and 26th, but denied it to him for the 27th, on the basis that the reference in Article 10.4 to "Article 10.1" meant only the holidays contained in Article 10.1 itself, and not Article 10.1.~. Certainly that was an "arguable" position to take, particularly in light of the language used by the parties in Article 6.2.6, and the numbering of the Article as it appeared in earlier versions of the collective agreement. But it also meant that the designated days under Article 10.1 were entirely discrete from the designated days under 10.1.1. And the problem with that was that it would mean that no "lieu" days would be applicable for the "true" stat holidays like Christmas and Boxing Day, because those appear only in Article 10.1.1, and not 10.1. That would appear to be somewhat anomalous, and the College itself, as noted, contributed significantly to the anomaly by itself granting lieu days for the 25th and the 26th ("erroneously", it was apparently explained at the hearing, on the basis that these were "stat holidays" specifically identified by the Employment Standards Act). The difficulty that that provided for the position of the employer did not go unnoticed by Mr. Brown, commenting at page eight of his award: 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. and then again at page ten: ... 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. Certainly in light of those considerations, it cannot be said that the conclusion of arbitrator Brown was "clearly wrong", and we are not persuaded to depart from it. The nub of the problem is in trying to interpret Article 10.4 for "other than Monday to Friday" employees in a way that is consistent with the benefit protection sought to be accorded "Monday to Friday".employees in Article 10.3, and the perspective on that appears to vary depending on whether one is considering the "stat" holidays falling in that Christmas week, like Christmas and Boxing Day, or simply the "ordinary" days of that week. In any event, we find the position taken by the Union and adopted by Mr. Brown in his award to be "arguable", and we accept it as properly determinative. The irony of that conclusion, as noted at the hearing when the second of Mr. Overholt's grievances ultimately came to be argued, is that the College virtually has to rely on Mr. Brown's interpretation of Article 10.4 in order to successfully defend its position on that second grievance. As background to that second grievance, we simply note that the grievor in the spring of 1990 was contemplating booking a cruise at Christmas of that year, and raised the question of his entitlement to insist on the full time off within the period specified in Article 10.1.1. On all of the evidence, including the grievor's own written chronology of events compiled in December of 1990, it appears most likely that that query was raised in the early part of the year not with management, but with the Union., and that it was the Union's approach to management on the question of time off at Christmas generally for the engineers in the power-house that prompted a written "clarification" of the Chief Engineer's policy regarding "vacation" time. In any event, we find that nothing turns on that. The clarification that was issued provided: Shift Engineers In response to a question concerning vacation scheduling the following will be policy. Vacations will be scheduled as per contract article 11.5. Vacations for personnel involved in essential services, such as shift engineers, will be taken during the June, JUly, August period. Outside of this period it is essential to have a shift engineer during normal College working hours as we have a full compliment of students and it is the normal hearing season. To replace a shift engineer during the Sept. to May period would result in a considerable expense due to overtime payment. "A. G. MacLellan" Notwithstanding that general statement of policy, however, Mr. MacLellan testified that as to the Christmas period itself, there are normally so few shifts and hours involved that vacation time can virtually always be worked out for a particular engineer if he makes that specific request. That latter statement by Mr. MacLellan is a reference to the fact that historically, while not scheduling these "essential service" personnel to be off entirely during the Christmas week, the College has turned down the boiler temperatures, thus much reducing the hours that the engineers in the boilerhouse are required to work. At the beginning of this particular year, however, the College had indicated its desire to continue at full power (and staffing) throughout the Christmas period, and the grievor never did get a direct answer on his Christmas query until all of the parties came together for a meeting in December. In qeneral terms, the focus of that discussion appeared to be the precise parameters of the Christmas schedule for the powerhouse, and when the College issued a revised schedule that reduced both the number of days and the number of hours in a day necessary to be worked by each of the engineers, the Union acknowledged the College's accommodation in the following letter: - 10 - 1990-12-19 Mr. Kevin Mailloux SUBJECT: Holiday Schedule I am writing further to your agreement to re-schedule the Christmas Holiday period for the powerhouse engineers. The decision to reduce the number of hours to work over the Christmas holiday period has made my members extremely happy. Your co-operation is greatly appreciated. Have a good holiday. "Sam Siddall" The grievor testified that he was not aware of the Union's letter in that regard, and that he himself was not pleased with the abbreviated schedule at that point. He indicates that he has pressed on with the instant grievanCe in order to have his right to "time off" at Christmas, without having to take vacation, clarified in a timely way for the next year. The essential difference between the parties in the issue that was previously dealt with by Mr. Brown, as the Dissent by Mr. Guptill makes clear, was whether Article 10.1.1 signalled what was really a separate category of "holidays", or whether it should simply be read as.additions to the list of those provided for in Article 10.1. The College argued for the former, for the purpose of the application of Article 10.4, and the Union for the latter. Now the Union argues that particular regard must be had to the language used by the parties in Article 10.1.1, that - 11 - employees "shall be granted the holiday period December 25 to January 1", and that that specific language should override any of the more general language set out in a "management Rights" clause. Article 3, for example, provides: 3. MANAGEMENT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the Colleges to: - maintain order, discipline and efficiency; - hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance as provided for in this Agreement; - generally to manage the College and without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. The College here counters, however, that Article 10.1.1 must be read subject to the explicit language of Article 10.4, and in particular the second sentence (which of course can only be used by the College if Mr. Brown was correct that 10.4 applies to the package of "holidays" set out in Article 10.1.1 as well as those enumerated in Article 10.1): - 12 - '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.i 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 6.2.6, 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. (emphasis the College's) The Union urges us, in the face of the language of Article 10.1.1, to narrowly read the word "required" as being due to some cause outside of the employer's control, and files some alternative dictionary definitions with us in suPport. More helpful than those dictionary definitions, it seems to us, however, is the context in which the word "required" is here used, and our experience with the words "required to work" in conjunction with designated "holidays" would lead us to imply no such limitation. Indeed, as arbitrator Brown himself commented, in the award upon which the union and Mr. Overholt here rely, at page 10: The reference to "eligible 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. Rather, where the language makes clear that the employee, notwithstanding the designation of a day as a "holiday" under the - 13 - agreement, may nonetheless be "required to work", the more natural inference is that the designation of such days as holidays makes them either days "off", or days that if called upon by the employer to be worked, must be paid for by the employer at premium rates (and subject also to any other provision for lieu days off, such as the present Article 10.4, as may be specified). As the evidence discloses, that appears to us to be in accord with the practice and expectations of the parties at this very College as well. We therefore find the broad statements of principle put to us by the Union in such very early cases as Standard Bread Co. (1962), 13 L.A.C. 175 (Thomas) and General Motors of Canada Ltd. (1953), 4 L.A.C. 1481 (Finkelman) to be of little assistance. In the result, therefore, while we agree with the conclusion of Mr. Brown in upholding the right of the grievor to "lieu" days under Article 10.4 and Article 10.1.1 combined, .we have not been persuaded that the College is in violation Article 10.1.1 in insisting on its right to schedule its non-Monday to Friday essential service personnel to work over the Christmas "holiday" period. That, once again, however, does not detract from the ability of such personnel to request "vacation" consideration for the days that theylwould otherwise be scheduled to work during this period, and in saying that we are mindful of the comments of the Chief Engineer Mr. MacLellan in his testimony before us. - 14 - The board will remain seized of the matter in the event the parties are unable to come to agreement upon the remedy flowing out of the board's upholding of grievance #1. Dated at Toronto this 25th day of June, 1992. "J. McManus" I CONCUR: UNION NOMINEE "G. H. Metcalfe" I DISSENT in part: (see attached) EMPLOYER NOMINEE DISSENT - IN PART Based on the evidence and the language before us, I am of the view that the Brown Award was wrong. In these circumstances it is incumbent on this Board to rectify that error and enforce the clear meaning of the language. With respect I must dissent: