HomeMy WebLinkAbout1991-2273.Buckley et al.92-06-25 ONTARtO EMPLOYES DE LA COURONNE
_ · CROWN EMPLOYEES DE L'ONTARtO
GRIEVANCE C,OMMISSION DE "
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS .STREET WESt, SUITE 2~00, TORONTO, ONTARIO. MSG 1.~8 TELEPHONE/TELEPHONE: (4 ~8] 326- 1388
2273/9[, 2036/9Z, 22[9/9[,
2220/9[~ 2533/9[
IN T~ ~T~R OF ~ ~IT~TION
~der
~ CRo~ EHP~E8 COL~CT~ B~G~ZNZNG
Before
BR~
0PSEU (Buckley et al)
Gri evor
- ~4 -
The Cro~ in Right of Ontario
(Minist~ of Health)
Brant County ~ulance Se~ice Ltd.
~ployer
BEFOg: P. ~opf Vice-Chai~erson
I. Thomson M~er
D. Clark Me. er
FOR T~E G. Leeb
~RIEVOR Grievance officer
Ontario Public Service Employees Union
FOR T~.E B. Baldwin
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HEARING June 2, 1992 _
DECISION
This is a case regarding the "banking" of holiday
pay under the Collective Agreement. Initially, the grievance
covered the issue of when the time should begin for the
calculation of the statutory holidays. However, at the
hearing the Employer agreed with the Union that the
calculation under the Collective Agreement should begin
April 1 of each year. However, the issue remaining in
dispute between the parties is whether or not the Collective
Agreement provides for a maximum in one's bank at any given
time of 48 hours or whether a total amount of 48 hours can be
accrued in any fiscal year. The provision in question in the
Collective Agreement is Article 14.04:
14.04 An employee shall have.the option of banking
holiday pay to withich he is entitled under
Article 14.01 subject to the following provisos:
(i) The time off must be taken on a date
which is agreeable to both Employer
and Employee.
(ii) The date for time off must fall within
the same fiscal year (ie. April i to
March 31) as the holiday being banked.
(iii) The maximum holiday hours ban~ed in
any fiscal year must not exceed
forty-eight (48) hours.
If the employee is not able to use his banked
time as time off within the fiscal year, he
will be paid for such time as per
Acticle 14.01 at the completion of the fiscal
year.
The Union argued that the language of
Article 14.04(iii) is ambiguous and offered extrinsic
evidence regarding negotiation history in order to clarify
the ambiguity, The Employer's position was that the language
was clear. BUt, for purpose of expediency, the Employer did
not,object to extrinsic evidence being heard. That evidence
can be summarized as follows.
The parties agree that the issue of the banking of
statutory holidays was raised by the Union in negotiations.
The Union tabled a proposal which would have given an
employee the option of banking his holiday pay to be taken as
time off at a mutually agreeable date within six months Of
the holiday and not to extend from one .fiscal year into the
next. There would have been no limit on the number of days
to be banked. The Employer's initial position at
negotiations was to oppose the idea complotely. The Union's
main witness, Dane Normore, explained that the Union proposal
for unlimited banking was eventually reduced to an agreement
or compromise between~the parties t6 a 48-hour. limit. The 48
hours was justified by the Union because they had a 48-hour
work week and they were agreeing to an Employer's proposal to
reduce one week's vacation for people at the 5-year seniority
mark. The 48-hour bank was seen as compensating for the loss
of the one-week vacation and for allowing for vacations for
people who were newly hired to the ambulance service. At the
point of these negotiations, the work week was 48-hours.
The U~ion suggested through one witness that there
were discussions held during negotiation about whether the
48-hour limitation would mean a maximum in one year or a
"running balance" of 48 hours. But Mr. Normore candidly
admitted in examination-in-chief that he did not recall
discussions about this matter "in one way or another." He
just recalled the language that was ultimately agreed to as
part of the Collective Agreement. The Employer's evidence
confirms this. The one Union witness who testified that a
representation had been made on behalf of management that the
48-hour limitation would be a "running balance" was not at
the meeting when the final language was agreed to. We do not.
believe that this witness deliberately misled the Board, but
may have confused the conversation about a "running balance"
with a staff meeting which was held after the signing of the
Collective Agreement wherein the President of the Employer
did not disagree with the Union's suggestion that the
48 hours amounted to a continuous bank rather than a one-time
banking or limit. ~owever, shortly thereafter, management
posted a "clarification on banking of holiday pay as per
Article 14.04", indicating to employees that management's
position was:
The maximum holiday hours banked in any fiscal year
must not exceed forty-eight (48) hours. For
example, if you have 48 hours banked and then used
24 hours, you many not bank an additional 24 hours
to bring your total back up to 48 hours.
The Union filed no notes of the negotiating
meetings. However, the Union did allow counsel for the'
Employer to file his notes from the negotiation meetings
which essentially confirm that the parties came to an
agreement on December 20, 1991 whereby the Employer's
proposal that one week of holiday be reduced for employees of
five years be exchanged for the Union's request to bank 48
hours of statutory holiday time. The Collective Agreemen~
and the language settled above as Article 14.04 was
ultimately signed by the parties.
This grievance was ~iled in October 1991, as soon
as the Employer issued its clarification notice as to its
interpretation of the Article in question. At that point in
time, no practice had developed as to the application of the
Collective Agreement that would be of any assistance to
either party in terms of helping this Board interpret the
Collective Agreement because that was the first time that the
banking issue could have arisen.
The Argument
The Union admits that the' issue before this Board
of Arbitration was not specifically discussed during
megotiattons. However, it was stressed that the
understanding of the negotiating team of the Union was that
the Employer's concern was that no more' than 48 hours could
be banked at one time. It was argued that this was what the
language of the Collective Agreement reflects rather than any
suggestion that the maximum any one person can accrue in one
year is 48 hours. Regarding the fact that the achievement of
this language'may have been tied to acceDting the Employer's
request for reduced, vacation entitlement~ the Union argued
.that this~ought not to diminish the Union's interpretation
that an employe~ should be allowed to accumulate up to
48 hours at any given time and thus be allowed a running
total during the course of the Collective Agreement. The
Union argues that the Droof that the Collective Agreement is
ambiguous is the fact that the Employer's President of
Operations needed to seek clarification from his counsel
regarding the interpretation of the Article. In short, the
Union agrees that no employee can b~nk more than 48 hours at
any given time. However, the Union argues that the iateat of
the parties was to allow the employees to keep a ~running bank
of 48 hours and if any time was used up, 'to replenish that
bank up to a.maximum of 48 hours.
.The Employer argues that Article 14.04(iii) is
q!ear and unambiguous and therefOre there is no need to refer
to extrinsic evidence to resolve the grievance. The Employer
contends that if the Union's argument were accepted,
Article 14.03 would essentially be read out of the Collective
Agreement because employees would be allowed to bank the
total number Of statutory holiday hours over the course of
the fiscal year, which would amount to 88 hours off. The
Employer argues that the Collective Agreement cannot be read
to allow for such an interpretation. Further, or in the
alternative, the Employer argues that the extrinsic evidence
shows that the position that the Union wiskes this Board to
accept was not adopted by the Employer during the course of
negotiations. It was said that extrinsic evidence can only
be used as an aid to interpretation where it reveals a mutual
intent of the parties. The Employer argues that .the
extrinsic evidence reveals no such mutual intent and
therefore should not be accepted as buttressing the Union's
argument. On the contrary, the Employer argued that the
extrinsic evidence reveals that it~never would have agreed to
allow the employees to bank a total of 88 hours over the term
of the Collective Agreement or the ,fiscal year.
The Decision
In order for a Board of Arbitration to rely upon
and be assisted by extrinsic evidence of negotiations, we
must be persuaded that there is some latent or patent
ambiguity in the language of the Collective AGreement. We
must start with a conclusion that Article 14.04(iii) is
completely clear and unambiguous. That language states
simply and clearly that an employee may only bank 48 hours of
statutory holiday time in any fiscal year. That means that a
maximum of 48 hours may be banked in a fiscal year in total.
The ~language of the Collective Agreemeent does not allow for
an interpretation that would invite employees to keep the
"running balance" that the Union contends. Otherwise, the
words "banked in any fiscal year" would have no meaning, nor
would the word "maximum". Therefore, on a str%ctrwordin9 of
the Collective AGreement, the Union's argument would have to
fail.
In fairness to the parties, we feel we should also
address the issue of the extrinsic evidence in the interest
of good labour relations. Th~ extrinsic evidence makes
clear that Article 14.04(iii) came into existence as one of
the typical and appropriate tradeoffs that often occur in
collective bargaining. In exchange for losing one week's
holiday for some of its employees, the Union was able to
acquire for the entire bargaining unit the right to bank up
to 48 hours of statutory holiday time. The 48 hours amounted
to one working week and gave the employees the potential of
gaining back that one week's holiday. The evidence before
this Board convinces us that the Employer bargaining team
walked away from. that set of negotiations with an
understanding and intent that the maximum amount allowed to
'be banked in any fiscal year would be 48 hour~. The Union
t'eam equally walked away with an understanding and intent
that the 48 hours could be calculated by way of a running
balance. But as the Union's chief witness admitted, there
was no direct discussion of running balances or not. Hence,
there was no misrepresentation by one party to another.
Instead, when faced with the opportunity of signing off the
Collective Agreement in the language of Article 14.04 cited
above, the parties accepted that language. Therefore, we
must conclude that the extrinsic evidence does~ not persuade
us that there was any misrepresentation or mutual intent that
could be used to either reveal a latent ambiguity or persuade
us that the clear and apparent meaning of the Collective
Agreement is anything other than what the words mean on their
face. Hence, even on the basis of extrinsic evidence, the
Union's case could not succeed.
For all these reasons it is our conclusion that the
Collective Agreement is clear and unambiguous and provides
that a maximum of 48 hours can be banked in any fiscal year.
Any statutory time beyond that 48 hours should be paid out to
the emDloyees as is the current practice.
Hence, the grievance fails.
DATED at Toronto, Ontario this 2§thday of Ju~e,
1992.
-~~ e Cha~
pau~a Kn~ 'r
/~. Thoms'on - Member