HomeMy WebLinkAbout1991-0802.Union.93-10-16 i.i'~ ~ ... ONTARIO EMPLOYES DE LA COURONNE
· ' ,;:-'~,~,:¢'"; ..... : !')-. CROWNEMPLOYEES DEL*ONTARIO
.............. GRIEVANCE C,OMMISSION DE ..
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUND~.S STREET WEST, ,~UtTE 2100~ rOi'ONTO, ONTARIO. MSG 1Z8 TELEF~HONE/T~:Lf~PHOIVE: (,~ 76) 2.26- ~388
180. RUE DUNDAS OUEST, E~UREAU 2IO0, TORONTO (ONTARIO). M5G ;Z8 FACSJM.~LE/T~L~COPiE : (416) 326-t396
802/91; 225/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLO~EES COLLECTIVE B~RG~INING ~CT
Before
THE ~RIEVANCE SETTLEMENT BOARD
BETWEEN
OPSBU (Union Grievance)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of Revenue)
Employer
BEFORE M. Watters Vice-ChairPerson M. Lyons Member
C.. Linton Member
FOR THE S. Goudge
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE P. Young
EMPLOYER Counsel
Filion, Wakely & Thorup
Barristers & Solicitors
HEARIN~ January 20,'1993
July 29, 30, 1993
The Union in this proceeding grieves that the Employer
failed to comply with Minutes of Settlement dated March 8, 1991.
By way of an Interim Award dated August 10, 1992, the Board
determined that it possessed the requisite jurisdiction to
address the issue of compliance with the aforementioned terms of
settlement.
This dispute involves approximately 1500 employees who work
as Assessors and Auditors for the Minist'ry of Revenue. Their
normal work week is 36~ hours. Given the nature of the work
performed, these employees are regularly required to work excess
hours during certain periods of the year. Excess hours of this
type are normally anticipated and planned for in advance by the
Employer, with some input from the affected staff. In view of
this work pattern, the hours of work for this group of employees
are averaged pursuant to Schedule A of the collective agreement
(Appendix 3). The issue in this case concerns the extent to
which these employees may themselves schedule excess hours which
have not been planned or approved in advance by the Employer.
Mr.. E.E. Faulknor was the sole witness to testify on behalf
of the Union. He has worked as a provincial Assessor since 1970.
Additionally, he has served as a Union Steward. At the time
material to this dispute,' Mr. Fautknor was Co-Chair of the
O.P.S.E.U.- Ministry E.R.C. Team.
Mr. D. Kirk was the sole witness called on behalf of the
Employer. He has worked as the Supervisor of Labour Relations in
this Ministry for the past nine (9) years. In this capacity, he
reported to Mr. J. Julian, the Manager of Personnel Serv'lces.
Mr. Julian, in'turn, reported to Mr. E.C. Farragher, the Director
of the Personnel Ser¥ices Branch.
The parties have, apparently, debated the scheduling of
excess hours from the mid-1980's onwards. Mr. R.N. Beach, the
Executive Director of the Assessment Services Division, issued a
memorandum of December 1, 1987 to all Regional Assessment
Commissioners, in an attempt to clarify certain of the
outstanding differences relating to the administration of
Schedule A. The memorandum, on the second page, stated the
Employer's position that "Schedule A hours must be authorized by
Management in advance." As a result of subsequent discussion
between the parties at the E.R,C. level, Mr. Kirk issued a
further memorandum on the subject on or about December 11, ~987.
The document was described as a "Clarification of R.H. Beach's
memo December 1, 1987 on Schedule A." It contained the following
clarification with respect to %he scheduling of excess hours:
"Generally, authorization by Management in advance
relates to planned work requirements. It is
recognized, however, that it may not always be possible
to have unexpected short-term excess hours authorized
e.g. extended telephone discussion or last inspection
call which necessitates working beyond quitting time on
any particular day."
This initiative did not lead to a resolution of the. matter. Mr.
Kirk advised that the Union responded in writing in mid-1988. He
testified that the Union asserted therein that the Assessors
should be able to self schedule excess hours. It was Mr. Kink's
evidence that the Employer was not prepared to recognize such a
· night. Indeed, it was his belief that this position remained
constant throughout the period material to this proceeding.
As a consequence of the above-described impasse, the Union
fi]ed a policy grievance on September 11, .1989. It reads, in
part:
"STATEMENT OF GRZEVANCE
The Union grieves that management have violated the
Collective Agreement in that they are improperly
administering the provisions of Appendix 3, Averaging
of Hours of Work,
SETTLEMENT DESIRED
That management immediately cease its restrictive
interpretation of Schedule A .(Appendix 3) and that the
materially affected members be afforded the flexibility
of work hours,"
A Stage Two meeting was held between the parties on October
25, 1989. Mr. F~ulknor, Mr. Julian and Mr. Farragher were all in
attendance at the meeting, Mr. Faulknor testified that he made
it clear to the Employer representatives that he "was looking for
self-determining hours." He stated that he presented the
Employer with two (2) examples in support of the Union's
position. The first situation was tt~at of an Assessor engaged in
a telephone conversation with a taxpayer ~t the end of the
3
working day. The second situation focused on an Assessor being
involved in a property inspection in the field at the end of the
day. Mr. Faulknor stated he told the Employer that, in both
instances, it would not make sense to require the Assessor to
seek the approval of management to complete the respective tasks.
In cross-examination, he testified that he used the
aforementioned examples as "some form of self determination." He
could not recall if he referred to the examples as "extreme"
situations.
Mr. Kirk agreed that the two (2) examples were, in fact,
presented by the Union at the Stage Two meeting. It was his
recollection that the Union was concerned that some Assessors did
not have to obtain permission to work the excess hours required
to complete such work, while others were compelled to get prior
approval. He did not dispute that there were inconsistencies
between the various Assessment Offices vis a vis the treatment of
excess hours. He also acknowledged that, in certain offices, it
was likely the accumulation of unplanned hours was not restricted
to the two (2) examples previously mentioned. It was Mr. Kirk's
perception that the Union wished to obtain a policy guideline
which would result in a more uniform approach to excess hours.
Mr. Kirk acknowledged, that the Union's "base position" at
Stage Two was "full self scheduling." He indicated, however,
that it did not ask for "carte blanche" ability to work excess
4
hours without authorization. Mr. Kirk suggested, rather, that
the Union sought "partial" self scheduling of hours. It was his
evidence that the Union limited its request through the specific
examples advanced at the meeting. In cross-examination, he
agreed that the Union representatives never stated they wished to
restrict use of unplanned excess hours to the two (2) examples
offered. Mr. Kirk stated they simply indicated that the examples
represented situations where it would be "crazy" not to allow
hours to go into the excess bank even thou.gh such hours were not
approved in advance. He, nevertheless, asserted that all of the
discussion at the Stage Two meeting was conducted in the context
of the specific examples raised.
Mr. Farragher, who served as the Minister's designee at
Stage Two, prepared a written summary of the Union's position at
the meeting. The third point in his summary reads:
"Management to stop the requirement for employees
to obtain advance approval (+ specification of
properties to be visited) for those hours worked
in excess of 7 ¼ per day."
Mr.. Kirk agreed that the summary, as worded, did not refer to any
limitations on the right to self schedule excess hours. He
further accepted that the language contained therein was
consistent with the Union's basic position that Assessors ought
to have the right to accumulate excess hours without prior
authority. Mr. Kirk again asserted, however, that the language
had to be qualified by the overall context of the discussions.
The parties at the Sta~e Two meetin~ ultimately decided to
refer the matter' to the E.R.C. for resolution as that committee
had been addressing Schedule A concerns for a considerable period
of time.
At. the E.R.C. meeting of December 15, 1989, the Employer
presented, inter alia, the following policy with respect to the
accumulation of excess hours:
:'Excess hours must be authorized by. management
in advance. Generally, authorization by management
in advance relates to planned work requirements.
It is recognized, however, that it may not always be
possible to have unexpected short-term excess hours
authorized e.g. extended telephone discussion or last
inspection call which necessitates working beyond
quitting time on any particular day."
This paragraph was one of eleven (11) on the issue of excess
hourS. Its wording corresponded to Mr. Beach's memo of December
1, 1987 and Mr. Kirk's clarification which followed shortly
thereafter. Additionally, the examples of unexpected short-term
excess hours provided therein were those which the Union advanced
at the earlier Stage Two meeting.
Mr. Faulknor testified that the Union was not content with
the proposed policy presented by the .Employer. It was the
Union's judgment that the proposal was excessively restrictive as
it appeared to confine the accumulation of excess hours to the
two (2) situations specifically mentioned, these being the
extended telephone discussion and the last inspection call. Mr.
6
Faulknor disagreed with the suggestion that, at that juncture, it
would have been reasonable for the Employer to assume that the
two (2) examples constituted the extent of the Union's concern
with self scheduling. He stated that the Union had advanced the
examples to show what they meant by "flex hours" and to emphasize
the point that there were situations where it did not make
practical sense to seek the approval of management to work excess
hours. Mr. Faulknor conceded that he did not characterize the
examples as "extremes." He added that it.was never the Union's
intent to limit the right to self scheduling to the two (2)
examples. Indeed, Mr. Fautknor stated that, at the meeting, the
Employer was advised there were other circumstances in which an
Assessor should be entitled to accumulate excess hours without
the need for prior approval. It was his evidence that he raised
the further example of an Assessor in the field electing to make
additional calls at the end of the day because the weather was
favourab~e for the completion of such work. Mr. Faulknor
indicated that the Employer representatives did not specifically
respond to this particular suggestion. Zn examination in chief,
and several times in cross-examination, Mr. Faulknor asserted
that the Union made it clear to the Employer that it wanted the
ability to self schedule, or self determine, hours. He
acknowledged that this right would be subject to some control.
Mr. Faulknor stated that at the end of the meeting the
matter was left unresolved. It appeared to him, as noted, above,
that the Employer wished to use the two (2) examples as the "only
times" where excess hours could be accumu]ated without prior
authority, whereas the Union wanted the ability to engage in one
(1) to three (3) hours of overtime without the requirement of
such approval. Mr. Faulknor testified that during the course of
the discussion, the Employer suggested that, the right to work
excess hours should be limited to "emergency" situations, Mr.
Fautknor indicated that he could not reca]l whether the Union
asked the Employer if the policy could be .stated in a less
specific fashion so as to remove the possibility of it being
limited to the identified examples, He agreed that it was
possible such an inquiry might have been made. Lastly, Nr.
Faulknor further agreed that the examples cited in the proposed
policy were directed to unexpected short term excess hours.
Mr. Kirk testified that the proposed policy was the
Employer's way of recognizing that there might be some unexpected
short-term excess hours situations where it would not be
reasonable for an Assessor to be required to seek advance
authorization. He stated that the two (2) examples referred to
therein, which were identical to those contained in his
clarification memorandum of December 1987, were a response to the
Union's concerns voiced at the Stage Two meeting. Mr, Kirk
agreed that the Union expressed further concern that the
identified examples might be taken by certain Assessment
Commissioners as the only situations in which unexpected short-
term excess hours could be accumulated without authorization. He
stated that, as a consequence, the Employer ultimately decided to
remove the reference to the two (2) specific examples. Mr. Kirk
indicated that other options were considered by the parties. In
this regard, he testified that they discussed the creation of a
"window", embracing a number of hours, to make it clear that
authorization to accumulate excess hours would not be needed up
to that limit.
Mr. Kirk was asked by counsel for the Employer whether,
apart from the two (2) examples, the Union ever raised further
examples in the period December 15, 1989 to April 15, 1991. His
response was, "Not that I can recall". He stated further that
the parties did not attempt to define what was meant by "short-
term". It was his evidence that the Employer did not think that
two (2) to three (3) hours would fall within the parameters of
that expression. Mr. Kirk conceded that such opinion was not
communicated to the Union. Lastly, he denied that the Employer
represen%~tives used the word "emergency" in describing when
excess hours could be accumulated without prior approval.
At the next E.R.C. meeting on January 23, 1990, the Employer
tabled the following revised proposal:
"Employees will be allowed to utilize excess hours
to a maximum of 7 ~ hours without prior authorization
from management to meet work requirements."
Mr. Fautknor described this proposal as being substantially
different from the one presented at the earlier E.R.C. session..
Zt is clear from a comparison o¢ the two (2) initiatives that the
Employer had removed the reference to the two (2) specific
examples and had inserted a 7 ~ hour threshold relating, to the
number o¢ excess hours that could be accumulated without
authorization. Further, the Employer removed the reference to
"unexpected short-term excess hours." Instead, it required that
the unauthorized excess hours be utilized "to meet work
requirements." Mr. Fautknor ~esti¢ied that considerable
discussion occurred at the meeting with respect ~o these changes.
Mr. Faulknor stated that he felt the Employer had eliminated
the requirement that excess hours not requiring approval be tied
to emergency situations, He indicated that he inquired whether
the change in language meant that Assessors, on their own
volition, could decide to work an extra two (2] to three
hours simply because the weather was accomodating or they were
having good success in finding property owners at home. Hr.
Faulknor testified that Mr. Julian replied that "this could
happen." In cross-examination, he asserted that he was "one
hundred percent positive "he had asked that question and that Mr.
Julian responded to it. Mr..Faulknor asserted that this latter
e~ample was unlike those which were previously incorporated in
the Employer's proposed policy. From his perspective, it did not
represent an emergency situation. He suggested that it related,
instead, to the convenience of the Assessor. He noted that the
10
example did not constitute "an extreme situation," as the
employee could be just a couple of blocks away from the office at
the time they elected to work the excess hours. Mr. Faulknor
testified that, apart from the one (1) example posed, he did not
pursue any further clarification as to the Employer's intent. He
acknowledged that he did not specifically ask whether the Union
was being given "full self scheduling."
Mr. Faulknor noted that the phrase "to meet work
requirements" had not previously been used by the Employer. He
assumed it meant that the excess hours were necessary to meet the
requirements of the job. He did not seek any additional
clarification on the point. Mr. Faulknor disputed the suggestion
that the phrase was intended to capture situations similar to
those mentioned in the earlier proposal. He testified that the
two (2) examples mentioned occurred so infrequently as to make
the 7¼ hour figure totally unattainable. He, therefore, asserted
that the Employer could not have had that intent.
Mr. Kirk agreed that the Employer took the two (2) examples
out of its proposal in response to the Union's suggestion that
they might be construed as the only situations where authority
was not required to work excess hours. He stated that the
intent, as reflected in the former examples, was "wrapped up"
in the phrase "to meet work requirements." In cross-examination,
when asked why the earlier constraints had been dropped, he
11
replied, "We figured we would respond to the Union's position not
to have two examples to move things along." Mr. Kirk added that
the Employer, in making this adjustment, did not believe it was
changing the context of the earlier discussions. More
specifically, it was his evidence that the Employer opted for the
7¼ hour threshold, at the Union's suggestion, as that figure
would adequately cover instances in which excess hours were
required for unexpected, short-term, situations. Mr, Kirk
maintained that the Employer did not agree, to self scheduling of
hours with the exception of those excess hours required in order
to deal with the type of situation addressed in the two (2)
e~amples previously discussed.
Mr. Kirk testified that the Union was not satisfied with the
7¼ hour figure and proposed that it be increased to 21 3/4 hours.
After discussion on the point, the parties agreed to compromise
their respective positions. They ultimately settled on a figure
of 14~ hours. This development led directly to agreement on a
further amendment to the proposal. More specifically, the
parties reached a consensus that excess hours would not be
accumulated without prior authorization in the final week of the
fiscal year. Mr. Kirk stated that when the threshold was
increased to t4~ hours, it was possible for an employee to
accumulate the extra 7¼ hours in the last week of the fiscal year
and thereby obligate the Employer to pay it out as overtime
instead of requiring that it be taken as time in lieu. Simply
12
put, it was his evidence that this change was made to avoid the
possibility that the Employer would be responsible for the
payment of overtime at the end of the fiscal year. He noted that
the "zeroing out" at the end of the year embraced both planned
and unplanned excess hours.
Mr; Kirk did not dispute the fact that Mr. Faulknor had
presented a third example relating to the Assessor putting in two
(2) to three (3) extra hours at the end of the day because the
weather was good and they were finding owners at home. He
maintained, however, that the discussion was in the context of
-another paragraph of the proposed policy relating to the four (4)
day week. Mr. Kirk seemed to suggest that Mr. Julian's response
was to the effect that Assessor-s in the summer months could
accumulate excess hours so as to be able to take off one (1) day
a week if done in the context of planned work requirements under
Schedule A. In substance, he disputed Mr. Faulknor's evidence
that the exchange concerned the accumulation of unplanned excess
hours.
At the next E.R.C. meeting on March 14, 1990, the Employer
tabled the following revised proposal-
"Employees will be allowed to accumulate excess
hours to a maximum of 14~ hours in a fiscal year
without prior authorization from management to meet work
requirements provided that no excess hours wilt be
accumulated without prior authorization in the final
week of the fiscal year.
13
As is readily apparent this revision incorporated the changes
agreed to at the prior E.R.C. meeting. As a consequence, there
was little discussion of the matter at the March 14th session.
Mr. Faulknor testified that management did not insist that
excess hours under the proposal be limited to emergency
situations. It was his understanding from the discussions that
Assessors had the right to self schedule "within the boundaries
of the 14~ hour ceiling."
Mr. Kirk agreed that the above proposal did not contain any
constraints on the use of the 14~ hours. More specifically, it
made no mention of the two (2) examples nor did it refer to
unexpected short term excess hours. Mr. Kirk stated that the
phrase "to meet work requirements "was the Employer's way of
"capturing what they had been talking about" in the earlier
meetings. He testified that there was no intent to restrict the
policy to the two (2) examples previously mentioned. He
asserted, however, that the language was designed to limit the
use of excess hours to "those types o¢ situations." Mr. Kirk
testified that he believed the provision was to apply to the two
(2) examples and to other unexpected situations requiring the use
of excess hours. He stated further that the phrase in question
referenced bona fide work in the context of the examples given.
Ultimately, Mr. Kirk expressed the opinion that, while the
Employer removed the words "unexpected short-term excess hours"
14
from'the proposal, i.t did not abandon the in'Lent flowing fr"om
such language. From his perspective, the proposals of March 14,
t990 and December 15, 1989 were identical in terms of the
constraints on the use of excess hours on Lhe part of the
Assessors. Mr, Kirk acknowledged that the Employer never told
the Union of its interpretation of "work requirements."
It was Mr. Kink's evidence that the example provided by the
Union of an Assessor etecting to do three (3) to four (4) extra
hours of work at the end of the day because of good weather would
not fall within the scope of the agreement. He asserted that
this amount of work was not the "short term, unexpected sort of
work" contemplated by the policy. Similarly, he stated that the
policy was not intended to cover an Assessor who decided to do
work at home at the end of the day. Mr. Kirk maintained that
such work could, and indeed should, be planned.
Mr. Faulknor testified that the parties believed they had
reached an agreement based on the revised proposal. Union
delegates to a Divisional meeting were appraised of the agreement
on March 3t, 1990. The grievance of September 11, 1989 was
subsequently withdrawn on April 2, 1990. On April 3, 1990, Mr.
Faulknor was advised by Mr. Julian that the Employer could no
longer agree to the proposal, as presented. Mr. Faulknor
testified that Mr. Julian told him that the Assessment
Commissioners felt the agreement would permit Assessors to take
15
excessive advantage of paragraph seven (7) of same relating to
the four (4) day week. ThaE paragraph reads:
"Excess hours can be utilized or accumulated
for the purpose of implementing a 4 day work week
arrangement subject to operational requirements,
as determined by management."
It was his belief that Mr. Julian was suggesting that the
Assessors could make up 7¼ hours during a four (4) day period,
under the terms Of the agreement, so as to be able to take the
fifth day off. Mr. Faulknor advised Mr. Julian that 'the Union
was not prepared to change what had previously been agreed to and
that. the Union would, accordingly, proceed with its grievance.
Mr. Kirk, in his evidence, stated that the Employer's
concern flowed from members of senior manasement who believed
that the agreement could be used to permit regu]ar four (4) day
weeks over the summer period through the combination of planned
and unplanned excess hours. Mr. Kirk did not share the same
concern given that the implementation of the shorter week was
"subject to operational requirements, as determined by
management." He also noted that management had some control over
planned excess hours. Mr. Kirk acknowledged that self scheduling
of hours, pursuant to the agreement of March 14, 1990, could lead
potentially to the accumulation of 74 hours in a period of a
week. He testified that such an occurrence would be "an
e.xceptian" that "would not easily occur." He suggested it could
occur' in the r~orthern part of Ontario where Assessors have to
16
travel significant distances between proper'ties. Mr, Kirk
described that scenario as an "extreme situation."
As a consequence of the above impasse, the dispute was
ult. imately scheduled for a hearing at the Grievance Settlement
Board on March 8, 1991. The grievance was withdrawn pursuant to
Minutes of Settlement of the same date. The relevant paragraphs
of that document read'
"2. The Employer will issue on Ap.ri1 15, 1991 a
memo from E, Farragher to management setting
out the March 14, 1990 guidelines re Schedule
3. These guidelines will be in effect without change
from April 15, 1991 until December 31, 1991.
Pursuant t.o the above terms, Mr. Farragher issued a three
(3) page 3 memorandum dated April 15, 1991 with respect to
"Guidelines Re the Accumulation and Utilization of Excess Hours
By Schedule 'A' Employees in the Ministry of Revenue." The
memorandum reads, in part:
"4. Employees will be allowed to accumulate excess
hoers to a maximum of 14~ hours in a fiscal year
without prior authorization from management to
meet work requirements, provided that no excess
hours will be accumulated without prior
authorization in the final week of the fiscal year.
5. Accumulation of excess hours beyond the maximum
of 14~ must be authorized by management in
advance. Generally, authorization by
management in advan.ce relates to.planned work
requirements or special circumstances.
9. Accumulation and use of excess hour's as described
in items 4 amd 8 must be properly recorded by
17
each employee and reported to management on a
weekly basis, as appropriate.
On or about April 12, 199t, Mr. Fautknor and Mr. Farragher
engaged in a discussion as to whether the 14~ hour total could be
topped up under the agreement. Their exchange resulted in the
issuance by Mr. Farragher of a letter of clarification dated
April 18, 199!. The letter, which was addressed to Mr. Faulknor,
stated, in part:
"Paragraph 4 was developed and introduced to address
the followin9 issues/concerns that were articulated
at the Stage 2 grievance meeting:
From time to time, assessors in the field
requiring an extra ~ hour to complete an
assignment could not do so on their own
authority ~ithout calling in to their manager
for permission. In the event the manager was
not available, the Assessor could not complete
the work required because the extra time
would not be recognized after the fact.
Assessors in the office receiving a phone call
or visit from a taxpayer at the end of the
day or needing to complete an assignment could
not work beyond the closing time and if they. did,
the extra time would not be recognized by the
managers after the fact.
Note: The above-noted rigid management of
Assessors in a few regions was compared
to the much more flexible and trusting
management approach of the majority of
the regions.
Paragraph 4 was not intended to address:
The normal day to day work where no special
circumstances require the working of an extra
½ hour or hour to complete the work at hand.
Working at home after the completion of a
regular day's work,
18
GAven the nature of the issues and concerns being
addressed and bhe anticipated infrequent need to
use this provision, management proposed a 7¼ hour
bank. Following receipt of the Union's counter-
proposal of 21 3/4 hour bank, the 143 hour bank was
accepted as it was felt that this would fully cover
the anticipated occasions of use. Zt was in this
context that the management rep'resentatives gave
you and your team the undertaking that the 14~ hour
bank could be topped up, if necessary. This
undertaking still stands".
The reference to paragraph ~ in the above excerpt was to Mr.
Farragher's earlier memorandum of April 15, 1991. In faqt, the
memorandum of April 15th was actually prepared by Mr..Kirk and
Mr. Julian, as Mr. Farraghe~ had not attended any of the E.R.C.
meetings referred to above.
Mr. Faulknor testified that Mr. Farragher's latter memo
addressed his concern with respect to the ability to top-up. He
totally disagreed, however, with the thrust of the first page and
a half of the document. He formed the impression that Mr.
Farragher was attempting to limit the use of unplanned excess
hours to emergency situations, as represented by the examples
cited. Mr. Fautknor repeated his earlier assertion that the
Union had asked during the "negotiations" whether an Assessor
would be allowed to work excess hours on his or her own volition
because either the weather was good or they were having success
in finding' persons at home. He noted that the Employer had
answered that quaere in the affirmative. Mr. Faulknor stated
that he found it difficult to understand why the Employer would
"take a step backwards" and again attempt to restrict the
19
provision to emergency situations. He indicated that he had been
an Assessor for some twenty-three (23) years and that, in such
period, had probably not accumulated t43 hours under those
conditions. He was, as a consequence, unable to fathom why Mr.
Farragher would think that the two (2) examples represented the
extent of the Union's concern.
Mr. Fau]knor advised Mr. Farragher that his letter amounted
to a violation of the agreement and that the Union would,
therefore, proceed to the Grievance Settlement Board for redress.
A second grievance was subsequently filed by the Union on April
29, 1991. The material part of that grievance reads:
"STATEMENT OF GRIEVANCE
Union grieves that management is violating Article 4
of the agreement made between the parties March 14,
~990 and circulated on April 15, 1991.
ie: limiting the occasions where excess hours can
be accumulated, both originally and for purposes
of topping-up.
SETTLEMENT DESIRED
Declaration to that effect and all consequential
relief. "
It was the position of the Union that the Employer breached
paragraph number three (3) of the Minutes of Settlement by not
keeping the March 14, 1990 guidelines (as reissued on April 15,
1991) in effect without change from April 15, 1991 to December
31, 199~. It was submitted that the Employer changed the
aforementioned guidelines by imposing the additional constraints
2O
oiled in Mr-. Farragher's letter of April 18, 1991. The Board was
asked bo conclude that those constraints were not present in, or
contemplated by, the language found in the guidelines. From the
perspective of the Union, the Employer had attempted to "narrow"
the occasions on which Assessors could resort to excess hours by
limiting the right to emergency situations.
Counsel for the Union argued that the language contained
within paragraph four (~) of the guidelines meant "pr'ecisely what
it says." He asser'bed t. hat such language was "clear and
unmistakeable." It was the thrust of the Union's argument that
there were only three (3) constraints on the right to accumulate
excess hours under the agreement. Firstly, the employee must be
performing bona fide work or, put another way, the excess hours
must be utilized to meet genuine work requirements. Secondly,
the accumulation was subject to the t4~ hour cap in any fiscal
year. Thirdly, there was to be no accumulation of excess hours
in the final week of the fiscal year without prior
authorization. Counsel submitted that these were the only
cons(.raints on the table at the time the guideline was finalized.
He claimed, therefore, that it would be wrong to allow the
Ernployer to subsequently add further constraints after the fact.
Counsel submitted that t}~e evolution of the guideline was
consistent with the interpretation he placed on it. Reference
was made to the following facts:
21
(1) the tJnion's original position in the Fall of 1989 was
'that unauthorized excess hours could be accumulated
without limit provided the work done was bona fide work;
(ii) Mr. Kirk's acknowledgment that the two (2) examples
referred to in the proposal of December 15, 1989 were not
intended to represent the only circumstances which would
justify the self scheduling of excess hours;
(iii)the two (2) examples and the "generic" constraint of
unexpected short-term excess hours we¢'e dropped from
the proposal of January 23, 1990 in favour of a 7~
hour cap which could be employed to "meet work
requirements". Counsel for the Union noted that Mr.
Kirk agreed the latter phrase corresponded to the
Union's original position;
(iv) that agreement was reached to extend the cap to 14~
hours and to prohibit the accumulation of hours during
the final week of the fiscal year. These two (2)
constraints and the provision that excess hours were
to be used to meet work requirements were the only
restrictions carried over into the March 14, 1990
guideline.
it was the submission of counsel that the constraints mentioned
in paragraph (iv) above were the only restrictions agreed to by
the part,es over the course of ~he three (3) E.R.C. meetings. Ne
argued that. to introduce other constraints, as attempted by
Farragher, would amount to a change of the guidelines in
contravention of the Minutes of Settlement.
Counsel for the Union referred to Mr. Kirk's evidence that
members of senior management were concerned that the accumulation
of excess hours, in conjunction with paragraph se~en (7) of the
9u'idetines, could result irt a regular four (4) day week regime.
He suggested that this concern would make sense only if the self
scheduling 3otential of paragraph four (4) was constrained as per'
22
the Union's position. More speoific~-ily, he asserted that
.Assessors would not be able to accumulate 7~ hours of excess
hour's over four (4) days of the week if their entitlement was
restricted to emergency situations as reflected by the two (2)
examples. Counsel submitted, in substance, that the Employer
would not have to worry about the potential of a four (4) day
week ~f the agreement ]imited the accumulation of excess hours to
emergency situations. He noted further that management has the
ability to control the accumulation of pre-authorized excess
hours. Zn summary, counsel argued that the Employer's concern
supported the Union's interpretation of the nature of the
agreement.
Counsel also submitted that the Union's position was
buttressed by the types of examples referred to by Mr. Kirk.
Counsel noted that management told Mr. Faulknor that Assessors
could work extra hours at the end of a day if the weather was
good and they were having good tuck in finding property owners at
home. Mr'. Kirk, himself, suggested that such hours could
similarly be worked by an Assessor in Northern Ontario in order
to complete inspections so as to avoid unnecessary travel on the
following day. It was argued by counsel that there was nothing
"emergent" about either of these examples.
Lastly, counsel for the Union asserted that the phrase "to
meet, work requirements" did not represent an additional
23
constraint;, as claimed by the Employer. Fie emphasized 'that the
phrase was not couched as a constraint in the guidelines.
Further, he argued that the Employer was estopped from advancing
such an interpretat~'on as it never informed the Union that was
what was irt. ended by the language. Counsel noted that, as a
co~se~ue~ce, the Un,on signed the agreement on the basis of the
plain ~anguage found therein. Zt was the Union's position,
therefore, that ?.he Employer was not at liberty to assert that
the phrase "'bo meet work requirements" mea.nt that. excess hours
could only be accumulated in emergency situations,
For all of the above reasons, ~he Union asked that we
declare the collective agreement had been violated and award
consequential relief. Simply put, counsel argued that the Board
should fashion a remedy which would put the Union in the same
position as if 'the Employer had complied with the guidelines. In
this regard, he requested an order that the guidelines, as
written, be effective for the same period of time as originally
contemplated by the Minutes of Settlement. Under such relief,
the Union would receive %he benefit of -bihe guidelines for an
eight and one-half (85) month per~od fo?}owing the re]ease of
this Award.
It was the position of the Employer that the Union did not
bargain for complete self scheduling up to the 14~ hour cap,
Rather, counsel asserted that the discussions were more narrowly
24
focused and were directed exclusively to the use of excess hours
to meet unexpected short-term s-ituat~ons. He stressed that Mr,
Kirk testified that the word "emergency" was not used by the
Employer, He also noted Mr-, Fau]knor's evider~ce that the words
"unexpected" and "unplanned" were used throughout the
discussions.
Reference was made to the evolution of tt~e guidelines.
Cour'~sel for the Employer stressed that the. Union's original
request for complete self scheduling had been rejected as far
back. as 1987. He suggested thab the discussion at the December
15, 1989 E.R.C. meeting did not address self scheduling but,
rather, focused on the two (2) examples which represented
instances of unexpected short-term excess hours. Counsel stated
there was no evidence that the Union renewed its request for self
scheduling at that initial meeting. Again, it was his submission
that the debabe between the parties was in the context of short-
term situations.
Colorset for the EmPloyer acknowledged that the proposal
presented aE the E.R.C. meeting of January 23~ 1990 was couched
in different ,language. He suggested that the change in language
was as a result of the Union's concern that the Regional
Assessment Commissioners would attempt to restrict the use of
excess hours to the two (2) identified examples. Counsel argued
that, notwithstanding the difference 'in language, the scope and
25
substance of the discussion remained unchanged. He asserted that
the part'ies were still talking 'in terms of unexpected short-term
excess hours and not of self scheduling,
Counsel for the Employer referred to other paragraphs in the
guidelines of April 15, 1991 and particularly to paragraphs one
(t) through three (3). He argued that these paragraphs
indicated, inter alia, that the parties had-agreed that excess
hours would be kept to a minimum and that.the use of same would
be properly planned for. Counsel submitted tt~at the self
scheduling, as claimed by the Union, was completely inconsistent
with these other paragraphs of the agreement. It was tile further
position of counsel Chat the phrase "to meet work requirements"
contemplated something "exceptional". He suggested it did not
mean bona fide work. We were urged to conclude that if the
phrase did have that meaning, there would have been no need to
use such language as any'work must be "real work." From the
perspective of the Employer, the examples of work being completed
at the end of a sunny day or at home were not exceptional.
Counsel submitted that the phrase "to meet work ~equirements"
should be interpreted in the context of the entirety of the
guidelines and the narrow focus of the discussions, Ultin~ately,
~t, was argued that the Un'ion was well aware that the guideline in
question related solely bo unexpected short-term situations. ~n
the alternative, counsel angued that if the phrase was ambiguous,
the Employer's interpretation was 'bo be preferred given the
26
nature of the examples discussed. Additionally, he suggested
that the Union should be estopped from asserting any right to
self schedule in view o¢ the fact the discussions were narrowly
focused.
It was the further position of the Employer that the series
of E.R,C. meeting were not akin to collective bargaining as the
parties were under no Oblligation to negotiate anything. Counsel
noted that, self schedulin9 had long been &n imp6rtant issue for
the Union and that the ~mployer had consistently rejected such
right. He argued that, given the significance of the issue, the
parties would likely have used the term se~f scheduling if ~ha~
is what ~hey in~ended by ~he agreement. Counsel also submitted
&hat we should took beyond the plain language of the agreement.
He suggested that we should place the greater emphasis on the
context of the discussions.
It was the ultimate position of the Employer that, for all
of the above reasons, it had properly complied with the Minutes
of Settlement.
In reply, counsel for the Union claimed that the use of the
14~ hour cap was consistent with the overall guidelines as it
reflected the parties agreement vis a vis a tolerable limit on
excess hours. Additionally, he submitted that the paragraphs
relied on by the Employer related to planned, in contrast to
27
unplanned, excess hours. Counsel further argued that the two (2)'
examples, which were removed from the guideline, were never
intended to serve as constraints. He submitted it was
significant that the phrase "unexpected short-term excess hour's"
was also dropped from the policy. In this regard, he described
the words "short-l:.erm" as amour%lng to a "meaningless
constraint". Counsel stressed that the words were never
addressed in the series of E.R.C. meetings. It was submitted
that the constraints added by management were i.nconsistent with
the plain ta. nguage of the guidelines.
The guidelines of March 14, t990, as reissued on April 15,
1991, were incorporated into the Minutes of Settlement by virtue
of paragraphs two (2) and three (3) of the latter document. Zn
the circumstances of this case, the Board must interpret
paragraph four (4) of the guidelines in order to determine
whether they were, in fact, changed in the period April 15, 1991
to December 31, 1991 contrary to the terms of settlement. As
noted previously, in our interim Award of August ~0, ~992, the
8oard concluded that it possessed the jurisdiction to address the
issue of compliance with the Minutes of Settlement. In the
process of reaching that conclusion, we accepted the Union's
~argument that, in so doing, we could properly interpret paragraph
four (4) of the guidelines.
28
The Board agrees with the comment in Re Canadian General-
Tower Ltd. (Oakvitte Division') and United Rubber Workers, Local
292 (1990), 12 L.A.C. (4th) 153 (Craven) as to the interpretive
role of a Board of ~rbitration in a case such as this. The
Arbitrator there stated:
"Nevertheless, if the grievance settlement is to be
enforced its terms must be interpreted. If, as the
company argues, the settlement is couched in ambiguous
language, then that ambiguity must be resolved so that
the real agreement can be given effect. In this regard
there is a crucial distinction to be drawn between
second-guessing the settlement in light of the original
dispute, which would constitute unwonted arbitral
interference in the grievance procedure, and
interpreting the terms of settlement to give effect to
the parties' mutual intention, which constitutes the
proper exercise of the arbitral jurisdiction to enforce
private grievance settlements, in the proper
circumstances, extrinsic evidence will be admitted to
aid interpretation .........................
(pages t55-156)
Reference was made in Re Canadian General Tower to the
award in Crown Electric, [1978] O.L.R.B. Rep. 344 (M. Picher).
The Board, in the latter instance, reviewed the jurisprudence as
it applies to the admission of extrinsic evidence. Zn this
regard, it stated as follows:
"12. Generally parol evidence or extrinsic evidence
is not admissible to vary or contradict the terms which
appear on 'the face of a written'agreement unless there is
established some ambiguity in the document itself.
Extrinsic evidence may be adduced as an aid to
interpretation where ambiguity is patent on the face of
the agreement. ~t may also be introduced to establish
a latent ambiguity, that is an ambiguity which is not
apparent on a plain reading of the document itself.
13. But a distinction must be drawn between latent
ambiguiCy artd a mere difference of interpretation of
words which are not otherwise ambiguous. Parol
29
evidence may be necessary to establish latent ambiguity
respecting the formal validity of documents, 'the
identity of parties or the ,leaning of technical terms
or terms of special usage (Alampi v. Swartz (1964) 43
D.L.R, (2d) ~1 (Ont. C.A.J. It may be admitted to show
ambiguity in the use of a proper noun, as where two
parties agreed to the sale of cotton to be delivered
"ex Peerless" from Bombay where there were in fact two
ships named "Peerless" sailing from Bombay at different
t4mes (Ra~%les v. Wichelhaus) (1864) t59 E.R. 375), But
the mere fact that there may be two arguably differer~b
constructions of a set of words does not of itself
establish latent ambiguity. Because of the greater
evidentiary value of written instruments and the
general need for legal finality, courts and boards of
arbitration alike have declined to admit extrinsic
evidence that would do no more than establish the
possibility of two contrary and self-serving
interpretations.
14. ~n this regard the Board adopts the following
words of the majority of the board of arbitration 'in Re
¢mternationat Nickel Co. ol" Canada Ltd. (1974) 5 L.A.C. (2d)
33! at 333 (Weatherill).
"It may be that the provisions of the collective
agreement here in issue pose a problem of
construction, so that they may be said to be 'of
doubtful meaning' in that very general sense, in
our view, however, the interpretation of the
notion of 'latent ambiguity' to include generally
'all. cases of doubtful meaning or application'
(Leitch Gold Mines Ltd. et al. v. Texas Gulf' Sulphur
Co. ('Inc) etaf., [1969] 10.R. 469, 3 D.L.R. (3d)
161, at p.524 per Gale, C.J.O.), should not be,
and was not intended to be taken so far as 'co open
the door to the admission of extrinsic evidence
wherever a disagreement as to the construction of
a document arises, I'f that were allowed~ the
strength of a document such as a collective
agreement would be greatly reduced, and the well-
established rules respecting the admission of
extrinsic evidence would be meaningless.
t5. There is no ambiguity in the words "all
compensation to the Chree grievors" and i~ our' view the
extrinsic evidence which the applicant seeks to
introduce would not establish a latent ambiguity.
Rather, it would merely provide the basis for
disagreement as bo the interpretation of a document
that is clear on its face and for which no latent
ambiguity could be shown. For that purpose extrinsic
evidence is inadmissible.
3O
17, Parties who enter.into written settlements have a
responsibility to ensure that they are fully aware of
the implications of any documents to which they attach
their signatures. In the absence of any allegation of
fraud the Board must assume that parties have agreed to
any settlement plainly expressed in a written document,
or otherwise no settlement would be immune from a
subsequent challenge.
This Board accepts the above comments as a correct statement as
to when extrinsic evidence may be resorted to in aid of
i nterpretati on.
The Employer argued that the guidelines should not be
treated as a product of negotiations as they were formulated over
the c6urse of a series of E.R.C. meetings. The Board cannot
accept that submission, it, is significant in our judgment that
the outstanding dispute on excess hours, arising from the
grievance of September 11, 1989, was referred to the E.R.C. for
resolution by the participants at the Stage Two meeting. Their
ultimate objective was to come to some resolve with respect to
the issues raised in that grievance, It is clear from at! of the
evidence that both sides attempted at the various E.R.C. sessions
to negotiate and obtain language favourable to their respective
interests. In this context, we think that the product of their
discussions, this being the March 14, 1990 guidelines, can be
treated in the same fashion as a settlement arrived at through
the grievance procedure,
31
To repeat, paragraph four (4) of the re}evant guide]ires
reads as fot]ows:
"Employees will be allowed to accumulate excess
hours to a max4mum of 14~ hours in a fiscal year
without prior authorizat~os fro~l management to meet
work requirements, provided that no excess hours will
be accumulated without prior authorization in the final
week of the fisca'i year."
It is readily apparent to the Board that the above paragraptl
perm'its employees to work, and to thereby accumulate, excess
hours up to a maximum of 14~ hours in a fiscal year w~thout f~rst
obtaining the authorization of management, tn substance, the
essence of the present dispute relates to the nature of the hours
which may be accumulated. Tile Union asserts that as long as the
work Js bona fide, ~t may be worked up to the level of the cap.
In contrast, the Employer's posit~on is that any excess hours
worked must be restricted to unexpected short-term sJtuatJons
similar to the examples ~dent~fJed ~n the KJrk memorandum of
December 11, 1987 and in the proposed po]icy of December 15,
1989. After assessing the matter in this context, the Board ~s
satisfJed that l~ttte turns on whether the Emp]oyer used the word
"emergericy" %o describe the situations in which excess hours
could be worked by the Assessors. Mr. Fau]knor acknowledged that
he equated that word with "unexpected short-term excess hours.
The Board does not consider the language found in paragraph
four (4) to be patently ambiguous. Rather, we think it 'is clear'
and unambiguous. The language, on its face, provides for three
32
(3) constraints on the accumulation of excess hours. FirsLly,
they may be accumt~lated to a maximum of 143 hours in a fiscal
year. Secondly, they must be employed to meet work requirements
and; thirdly, excess hours oannot be accumulated in the fina~
week of the fiscal year without prior authorization. With
respect to the second constraint, we do not interpret the phrase
"~o meet work requirements" as meaning unexpected short-term
~sit. uabions. Simply put, such a limitation or' restriction does not
flow from the plain language of the guidel.ine.
In this 'instance, extrinsic 6vidence was led by bo'th parties
as to the process which oulminated in the guidelines of March t4,
1990. This evidence was introduced without any objection being
raised by either side. It was the Union's position ~hat Ehe
extrinsic evidence supported ~ts submission ~hat the plain
language of paragraph four (4) of the guidelines allows Assessors
to self schedule excess hours up to the 143 hour cap. The
Employer, in response, argued that the context of the discussions
makes it clear that the agreement related s¢lely to the
aCCUmulation of excess hours in unexpected short-term situations.
Fur"bher, the Employer asserted that the words "to meet work
requirements" captured and evidenced this mutual intention.
Quite apart from the consent of the parties, we think that the
extrinsic evidence was properly placed before us. In the
cir'cumstarlces of this case, such evidence has allowed the Board
to assess whether the aforementioned phrase is latently ambiguous
33
in the sense that the parties intended it to have a meaning other
than that suggested by the plain language.
The Board has reviewed the extrinsic evidence presented on
behalf of both parties. Such evidence, in certain respects, is
supportive of both sides of this dispute.
Turin9 first to that evidence which supports the Union's
position, we note as follows:
i) Mr. Fautknor testified that at Stage Two, he stated
the Union wanted some form of self scheduling. He asserted
Chat the examples offered were situations where it would
make sense to have that right. Mr. Faulknor maintained that
there was no intent to establish a limit through the use of
the two (2) examples. Mr. Kirk agreed that the Union never
said it wanted to restrict itself to the examples. He was
aware that the Union's base position was full self
scheduling, Mr. Farragher's notes of the Union's position
at Stage Two did not refer to any constraints. This
evidence suggests that the Union intended to negotiate a
broader form of self scheduling than the Employer was
initially prepared to recognize.
ii) The Union opposed the Employer's proposal of December 15,
1989. It viewed the proposal as excessively restrictive
as ir'seemed the Employer wanted to restrict the Union to
the two (2) identified examples. Mr. Fau/knor testified
that he advocated for a broader right to self schedule. He
stated he then told the Employer there were situations other
than the examples that would be encompassed by the right to
self schedule. Again, all of this evidence suggests that
the Union was not prepared to limit itsel¢ to the narrow
scope of the proposal. It is clear that the Union was not
satisfied with Mr. Beach's memorandum and Mr. Kirk's
subsequent clarification, It is a reasonable inference Cleat
it was not likely to accept the same proposal in 1989.
iii) The Employer in 'its January 23, 1990 proposal discarded
the two (2) examples and omitted the reference to unexpected
short-term excess hours. From the perspective of the Union,
this amounted to a removal of unwanted constraints. We
question why the Employer would drop the reference to
unexpected short-term excess hours if it still intended to
34
apply the policy to those situations. It could just as
easily have stated that the cap was intended to apply to
unexpected short-term situations without any referer~oe to
examples. The removal of the express constraints, and the
replacement of same with a 7¼ flour cap, suggests that the
Employer was granting the Union the right to self schedule
up to the level of tile cap.
iv) Mr. Faulknor testified that at the meeting of January 23,
1990, he inquired whether Assessors could on their own
volitior~ decide to work an extra two (2) to three (3) hours
at the end of the day because they were having 9cod success
finding people at home or the weather was good. Mr.
Julian's response led him to believe this could happen.
Given that the example was not an "emergency" situation, the
response could reasonably lead the Union to conclude that
the Employer was prepared to grant a broader right to self
schedule. Mr. Kirk testified that the comment was made by
Mr. Julian but that it referred to paragraph eight (8)
rather than to paragraph four (4). The Board did not hear'
directly from Mr. Julian on the point. In all of the
circumstances, we think it more likely than not that the
comment was made in response to a question as to whether an
Assessor could accumulate excess hours in that sort of
situation.
v) The words "short-term" were not discussed in the series of
E.R.C. sessions. ~4r. Kirk acknowledged the Employer did
not advise the Union that it wasn't thinking in terms of two
(2) ~o three (3) hours. This failure to address or define
the concept of short-term is consistent with an intent on
the part of the parties to not restrict themselves by the
type of constraint found within the December 15, 1989
proposal.
vi) The Employer, through Mr. Kirk, conceded that it did not
inform 'the Ur~ion of i~s more limited interpretation of
tile phrase "to meet work requirements" Given Nlm. Jutiar~'s
response, it was reasonable for the Union to not seek a
clarification of tile intent of the language. We think thal;,
in all of the circumsl;ances, the Union could construe the
phrase as meaning bona fide work. The Employer's silence on
the point is consistent with an intent to grant a broader
form of self scheduling.
vii) A cap of 7¼ hours, if limited to the two (2) examples,
would not likely be attainable. This was the thrust of Mr.
Faulknor's evidence. This would doubly be the case once the
cap was increased to 14~ hours. This aspect of the evidence
suppc~rts t. he Union's assertion that the parties did not
intend to limit the right to une.~pected short-term
35
situations. The addition of the third constrairlt relating
to accumulation in the final week of the fiscal year
provides further support for that inference.
viii)Management, as far back as 1937, had recognized that short-
term excess hours, as per the two (27 examples, could be
worked on an unauthorized basis. There was no cap in Mr.
Kirk's memorandum of December 1987 nor in the proposal of
December 15, 1989. This begs the question why the Union
would settle on a cap for this type of situation, if they
already enjoyed such a right without a cap. This gives
credence to the submission that the Union believed they were
negotiating a more advantageous form of self scheduling.
Turning next to the evidence supporti, ng the Employer's
position, we no'be as follows:
(i) The Employer in the past had rejected all Union proposals
for self scheduling. Paragraph four (4) of the guidelines
did not refer expressly to the right of self scheduling.
This is consistent with the Employer's assertion it did not
plan to agree to self scheduling to the extent claimed by
the Union.
(ii) The examples offered by Mr. Faulknor at Stage Two could
properly be described as unexpected short-term situations.
Mr. Kirk stated that at such meeting, the Union did not ask
for "carte blanche" excess hours. Zt is. arguable,
therefore, that the Union was limiting its request through
the examples advanced, These exarnptes, according to Mr.
Kirk's evidence, were inserted in the December 15, 1989
proposal because of Ohe Union's concern, as voiced at Stage
TWO. That gentleman also testified that he could not recall
other examples having been raised by the Union at that
meeting.
(iii)The Employer asserted that the changes reflected in the
proposal of January 22, 1990 were made at the Union's
insistence so that the right to accumulate excess hours
would not be restricted to the two (2) examples. From the
Employer's perspective, the amendments did not affect the
context of the discussions. More specificaily, it was
argued that the intent was still to limit the use of excess
hours to unexpected short-term situations. On the ·
Employer's theory of the case, that intention continued
through use of the cap ~nd 'the phrase "to meek work
requirements"
36
The Board has assessed all of Lt,e evide~ce presented 'itl th'is
case, including that relating to the con~ex~ o¢ ~he d~sousgions
a'b Stage Two and ab Lhe senies of E.R.C. meetings. We are unable
~o conc]ude from ~his revie~ bha~ ~he par~ies mu~ua]]y agreed ~o
res~ric~ ~he accumutab~ion o¢ excess hours ~o unexpected short-
~efm situations. Further, we have no~ been persuaded ~ha~ the
Union shared %he ~mp]oyer's inberpre~a~ion of ~he phrase "~o meet
work requirements", as advanced a& ~he hearing. ~ndeed, as
s%a't;ed above, bh~s ~r~terpr-etatio~ was r~eve.r communicated to the
Union. Generally, we f~nd that the thrust of the extrinsic
evidence ~s more supportive of the Union's position than o¢ the
Employer's. At the very least, such evidence is equivocal as to
the mutual intent of the par~ies.
In the circumstances of this case, the mutual intent of the
parties is'best gauged from the tanguage of the guidelines, and
in particular from paragraph four (4) thereof. T'he Board is of
the view that such ]anguage should only be supplanted if it can
be demonstrated through extrinsic evidence that the parties had
some other" ~nt. ent at. the -bime they negotiated the guidelines.
For the reasons expressed above, we have not been persuaded by
such evidence that they mutually agreed to restrict the use of
excess hours to unexpected short-term situations. As a
oonsequence, 'l;he Board f'ir~ds thal~ the guidelines must be applied
in accordance with the plain language found therein. We have
previously sLa'ted our assesar~er~t that this tar)guage does not
37
co~hemplate the r'estrict~on reta81rt9 to unexpected short term
s~buations, as reflecteiJ by tt~e examples cot~ta~ned in the
proposal, oi~ December t.5, t989. it naturally fot]ows that the
Employer, in eff'ec~, changed the guidelines ~hen i~ attempted to
r'eintrod~ce t.h~s const, ra'in~ through Flr. Far'¢agher's letter of
April t8, 1991. This attempt, Jn our ~udgment, amounted bo a
viotat~or~ o!: paragraph three (3) of the-t4~nutes of Sett. lement.
For ali of the neasons set out above,, the Board declares
that the Er~p]oyer raj]ed 1:.o comply w'ith the Mir]utes of Settlement
dated March 8, 199t, As noted earlier' 1n th~s Award, the Union
asked for (::onseq(~ent~a] r'e} ie¢ ~r~ ~he for'm of an order that the
affected employees be entitled to en3oy the benefit of the
guidelines for an e~ght and one-half (8~) month peniod to
compensate them for the ]oss of the opportunity in the period
Apr,] 15, 199I to December 31, 1991. Counsel for the Employer
did not comment directly on this request. This Boand is inclined
to Brant some cor~sequent~a] r'e]ief. We think, however, that
would be preferable at f~rst ~nstance to refer the mat%er back to
the parb~es so that they m~sht have 'the opport'unlty 'to fashion an
appropriate remedy. Should they be unable to do so, we
reconvene at the request of either pa. rby to determine what
remedial order should be granted. The Board remains seized with
r'espect to the 'implementation of %he Awar'd.
38
The grievance is allowed.
Dated at Windsor, Ontario this 16th day of December ,1993.
39