HomeMy WebLinkAbout1991-0904.Rinehart et al.94-11-29 ONTARIO ~=MPLOY£S DE LA COURONNE "'~ ~
C~OWN EMPL OYEE$ DEL'ONTARIO
GRIEYANCE COMMISSION DE
SE'I'I'LEMENT R GLEMENT
BOARD DES GRIEFS
tSO OUNOAS STREET WEST, SU[TE 2~00, TORONTO, ONTARrO. ,M5G ;Z8 TELEI=t4ONE/T~L~'PHONE: (.~16) 326-;388
~80, RUE DUNOAS OUEST, BUREAU2100, TORONTO {ONTARIO). MSG ?Z8 FACSSMSLE/T~LI'.-C. OPIE : [416) 325-;396
904/91,906/91,907/91,1086/91
IN. THE M~TTEIt OF AN ARBITRATION
Under:
THE CRO~ EHPLOYEE~ COLLECTIVE B~tG~IN:rNG
Before
THE GRIEVANCE SETTLEMENT
BETWEEN
OPSEU (Rinehart et -al)
· - Grievor
' -- a~d-
The Crown in Right'of Ontario
(Ministry of Health)Thames Valley Ambulance
.. Emplo][er
'BEFORE = R. Verity Vice-Chairperson
P. Klym Member
M. O'Toole Member
FOR THE M. Doyle
.UNIO~ Counsel
Ryder Whitaker Wright
FOR THE P. Whalen
EMPLOYER ~ounsel
Barristers &.Solicitors
HE~RIN~ January 8, 1993
April 7, 1993
January 12, 1994
May 9, 1994
June 23, 1994
DECISION
In this matter, we have before us four individual grievances filed by driver/attendants
employed by Thames Valley Ambulance Limited alleging that the employer failed to grant
the approp~ate vacation entitlement in 1991, contrary to Article $4.02(c) of the collective
agreement. Each of the grievors was granted three weeks Vacation with pay for the vacation
year beginning April 1, 199L The claim is for four-weeks paid vacation.
The dispute is said to involve the proper interpretation of 'Article 34.02 of the
agreement. The issue is whether, for the purposes of calculating vacation entitlement,
seniority or date of full-time employment is the operative factor. Seniority, of course,
includes part-time service on a pro-rated basis. There was no dispute as to the Board's
jurisdiction to hear and determine the matter.
The following provisions of the relevant collective agreement are material:
ARTICLE 34 - VACATIONS
· 34.01 For the purpose of calculating vacation ~ntiflement, the vacation y~ar shall be
deemed to commence on April 1st of each year, and to end on March 31st of
the following year. Vacation pay shall be determined on the basis of thc
employee's wage rate of pay for the pay period immediately preceding vacation.
A week is regarded as be/nS forty (40) hours.
34.02 Vacation entitlement shall be as follows:
(a) less than twclvc (12) months; six percent (6%) of gross carning~
(b) one (1) year to five (5) years; fifteen (15) days vacation, plus pay for one
hundred and twenty (120) hours;
(c) six (6) years to ten (10) years; twenty (20) days vacation, plus pay for one-
hundred and sixty (160) hours;
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(d) Ten (10) years to twenty (20) years; twenty-five (25) days vacation, plus pay for
.: two-hundred hours;
(e) ~ In the twentieth (20th) year and thereafter, thirty (30) days vacatio~ plus pay
for two hundred and forty (240) hours.-
34.04 Vacation requests will be submitted on or before April the 1st ia each year. Vacations will be
allotted on the basis of seniority, provided that such allotment does not result in more than five
(5) full time employees being on vacation at any one time. It is understood that the Company
reserves the right, where necessary, to alter shift achedulcs to allow a minimum of one full-time
and one part-time employee on each crew. Where possible, this shall be accomplished in the
following manner,
A, On a voluntary basis
B. Where there is no volunteer.
(i) Employees w/Il be assigned ia reverse order of senior/ry.
(ii) No employee shall be required to change scheduled days off.
34.05 Subject to the provis/ons as mentioned before, an employee reques~in$ four (4) consecutive weeks
of vacation shall be allowed four (4) weeks of vacation provided that such is consistent with
Company scheduling. 'In considering such requests, and any case or cases of conflict, the
Company shall consider seniority.
AR-TICLE 35 - SENIORITY
35.01 Seniority, as ~eferred to in this Agreement, shall mean length of pro-rated
service with the company. Seniority shall be used ia determinin_g preference or
priority for promotions, vacations, layoffs, and recall. Seniority shall be on a
company-wide basis,
The relevant facts are not in dispute. The grievors Rinehart and MacMillan
commenced part-time employment with Thames Valley on May 12, 1985. February 26, 1985
was the date of the commencement of part-time employment for Schelhaas and for Stein
the date was October 11, 1984. However, all four grievors commenced full-tlme
employment with Thames Valley on April 27, 1986. Briefly stated, the grievors claim
vacation entitlement on the basis of seniority, including part-time employment on a pro-
rated basis. The employer's position is that while the allotment of vacations is governed by
4
seniority, the recognition of part-time service has never been a factor in the calculation of
vacation entitlement.
The first position of ge parties is that the language of Article 34.02 is clear and
unambiguous. The union contends that in the absence of any reference to full-tlme
anniversary date, seniority is the operative factor in Article 34.02 and that years of service
determine vacation entitlement on April 1 in any given year. In the alternative, Ms. Doyle
argues that reference to "years" in Article 34.02 (b) and (c) is patently ambiguous and that
the evidence of past practice adduced by the union supports its interpretation of the article.
~ One authority was submitted; namely Cochrane Temiskaming Resource Centre and O~tario
, '~.!
Public Service Employees Union~ Local 664 (unreported, October 26, 1990 (Chamey)).
It is the employer's position that Articles 34.01 and 34.02 specifically exclude
seniority and incorporates the concept of "vacation year" for the purposes of calculating
vacation entitlement. Alternatively, Mr. Whalen contends that the extrinsic evidence
submitted by the employer supports its interpretation 9nd that the evidence called by the
union does not assist in establishing a dear and consistent practice. Further, he argues that
the evidence introduced by the employer supports an estoppel; namely, that for some 12
years the 'employer has never used seniority for the purposes of calculating vacation
entitlement. In support, reference was made to the following authorities: Re Owen Sound
General and Marine Hos~pital and Ontario Public Service Employees' Union (1980), 25 L.A.C.
(2d) 419 (Beck); Re Block Drag Co. (Canada) Ltd. and Energy & Chemical Workers Union,
Local 35 (1990), 17 L.A.C. (4th) 283 (Solomatenko); Re University of Ottawa and Association
of Professors of The University of Ottawa (1979), 22 L.A.C. (2d) 192 (Weatherill); R.e
5
Teamsters' Union, Locals 91, 141, 879, 880 and 938, and Motor Transport lndustrial Relations
Bureau of Ontario (19~9), 20 L.A.C. 140 (Weatherill); Re Great Atlantic and Pacific Co. Ltd.
and Retail, Wholesale and Department Store Union, Local 414 (1983), 12 L.A.C. (3d) 135
(Weatherill); and Re United Automobile Workers, Local 2Z and Northern Electric Co. Ltd.
(1971), 22 L.A.C. 163 (Weatherill).
The Board's task in an interpretation case is to gather the intention of the parties.;
As a general rule, that intention is derived fxom the language of a collective agreement. It
is elementary that all of the terms of the collective agreement must be construed as a whole
and accordingly words in a particular provision must be interpreted in light of the entire
agreement. ,
In the instant matter, Article 34.01 makes it clear that '~for the purposes of
calculating vacation entitlement", the vacation year commences on April 1 of each year and
ends March 31 of the following year. The article goes on to address the wage rate for paid
vacations. We 'have difficulty accepting the employer's contention that vacation
entitlement is calculated in accordance with the number of vacation years to the credit of
an employee as of April 1 in any given year. The union's argument appears, to use seniority
and years of service interchangeably. In our view, that is not always the case.
Article 34.04 provides that 'Vacations will be allotted on the basis of seniority" with
the proviso that not more than five full-time employees ,can be on vacation at any one time.
Article 34.05 specifies that seniority shall be the operative factor in scheduling vacation
requests for employees with four consecutive weeks of vacation.
6
In resolving the issue before us, it is helpful, we think, to read the seniority
provisions contained in Article 35.01. In that article, seniority is defined to mean "length
of pro-rated serv/ce w/th the company." The ar~cle also provides for "company-w~de
seniority." Of particular significance is the provision that "seniority shall be used in
determining preference or priority for promotions, vacations, lay-offs and recall." There is,
hOWever, no reference in Article 35.01 to the fact that seniority applies to the calculation
of vacation entitlement.
It is interesting to note that the parties do not appear to have addressed year five ia
Article 34.02. We were advised by counsel howeyer, that this was aa oversight and that "five
or more years" would have attracted four weeks of paid vacation. ~While it may be said that
the wording of Article 34.02 is not a model of clarity, it is sufficiently clear when read in the
context of Article 35.01 for us to conclude that there is no ambiguity in the language which
would justify reliance upon.extrinsic exr/denee. We read the word "years" in Article 34.02
(b) and (c) as referring to years of full-time service. It is worth noting that the evidence of
extrinsic evidence introduced by the parties was not entirely consistent with their respective'
positionS. If the parties had intended to include service in the part-time employment status
for the purposes of calculating Vacation entitlement, then specific language Would have been
required, given the wording of Article 34.01. In our view, the use of seniority is clearly
specified in.Article 35.01 in determining "preference or priority for ... vacations." To import
the concept of seniority into the calculation of vacation entitlement, given the wording of
Article 35.01 would be to effectively alter or change the provisions of this collective
agreement, which clearly would be contrary to Article 30.06.
7
B,oth the parties sought to introduce evidence of past practice - the union to support
its interpretation arid the employer both to support its particular interpretation and to
ground an estoppel. We have found that there is no ambiguity in the language of Ai'ticle
34.02 to justify the admission of such evidence. Similarly, it is unnecessary to consider the
\
estoppel argument. In the result, these grievances are dismissed.
DATED' at Brantford, Ontario, this .29thday of l~ovember 1994.
! Dissent "DJ. ssent Att:ached"
P. KLYM - MEMBER
M. O'TOOLE - MEMBER
DISSENT OF UNION NOMINEE
I agree with'the majority that-our-task-in this case was-
to determine the intention of the parties. Specifically, we
are asked'to decide what the parties intended by the words
'iyear" and "years'' in Article 34.02.
~ The majority ~oncludes that, even though Article 34.02 is
not a model of clarity, it is sufficiently clear that "years"
refers ~o "full time service".
With respect, no such reference to full time service
specifically exists in Article 34 - neither in the overall·
application of Article 34 nor in the entitlement Article 34.02.
I find it impossible to conclude that there is no ambiguity
in ·the language of Article 34.02. Therefore, it is my belief
that we can only resolve the intent of the parties by inspecting
'the manner in which they have applied this article in past
practice.
The employer's witness, Irene Carruthers, testified that she
has been responsible for calculating vacation entitlements since
1981 and that she has done this in a consistent manner since then.
The evidence from the parties and through Exhibits 7, 8 and 9
was that the relevant language that concerns us was essentially
the same from 1981 except that in the i987 Collective Agreement
the vacationyear.was changed from the previous July 1st - June 30
to April 1 - March 31.
Exhibit'i0 was introduced by Ms. Carruthers to·indicate how
She had been applying "years" in Article 34.02. · Thi~ Exhibit t0
covers the period from 1985 on.
EmploYee E. Barr has &·full time service date of 4 April 85.
Yet during the vacation year at that time of July 1/85 to June 30/86,
Barr was given 120 hours vacation· entitlement. Obviously,.Barr
did·not have one year of full time service on July 1, 1985. There-
fore, Ms. Carruthers was certainly using another yardstick than
full time service.
Dissent of Union Nomine~_J~9~~~
The same'situation exactly applies to J. Sidderi'us who also
has a full time service date of April 4/85.
Exhibit 10 als0 shows that both Ba~_and Sidderius received
160 hours vacation entitlement for the vacation year April 1/90 to
March 31/91. Yet neither of them had moved out of the "one y~ar
to five year" entitlement.group to qualify for more than 120 hours,
if full time service was used.
Indeed, the same interpretation~regarding entitlement was
used'for the four grievors.
Ail the g~ievors have a full time service date of April 27/86,
For the vacation year of April 1/87 to March 31/88, they were each
given a vacation entitlement of 120 hours. Yet they did.not have
"one year to five years" of full 'time service on April 1/87.
Therefore, full time service was not used in this instance either.
From the documents presented to us and the evidence we received,
it appears, that.every time, at least since 1985, when this issue of
interpreting· vacation entitlement arose, full time service was not
used when deciding what ."years" meant in Article 34.02.
Ms. Carruthers, when trying to explain Exhibit 10 and what
she used to determine ,years" in calculating these vacation
entitlements, resorted to an interpretation of "years"'as being
· number of vacation.years. This interpretation of the language is
not feasiblej and I agree with the majority in not accepting it.
It is apparent that the parties themselves have not been
using'an interpretation of "years" as meaning years of full time
service.
Indeed, my review of the file does not-show that the employer
took the position that "years" in Article 34.02 meant years of
full time service. They.took the position that "years" meant ~
number of vacation years and the majority has rejected this interpre-
tation.
So, if neither party argued that it was their intent that
"years" meant full time service and no clear language says this,
I find it difficult to conclude that this Board should so find
without being guilty of writing words into the.Collective Agreement.
GSB 904/91, 906/91, 907/91, 1086/91 .... 3 -
Dissent of Union Nominee (Continued)
It is apparent that the,partieswere using.something other
than full time service over the years. It is obvio6sly some
combination of full time service plus a credit for part time
service. This would lead me to conclude that'the only thing
that appears consistent is that they were in fact using, seniority
to arrive a~ this combination of full time and part time service.
I strongly disagree with the suggestion that Article 35.01
prohibits the'use of seniority for this purpose.
I would uphold the grievances.
Peter Klym ~