HomeMy WebLinkAboutRivette-Bancroft/Union 16-08-11IN THE MATTER OF AN ARBITRATION
BETWEEN:
CORNWALL COMMUNITY HOSPITAL
(The "Hospital"
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION,
LOCAL 402
Combined Full -Time & Part -Time
(The "Union")
AND in the matter of a union policy grievance and an individual grievance.
ARBITRATOR: William A. Marcotte
APPEARANCES:
FOR THE HOSPITAL: P. Heffernan, counsel
S. Depratto, mgr., L.R.
K. Hagen, dir.,fin. serv.
and others
FOR THE UNION: D. Steinfeld, counsel
M. Rowe, counsel
C. Campeau, pres., Loc.402
J. Loucks, Loc. 402
R. Rivette-Bancroft, grievor
Hearings held in Cornwall on April 12 and July 15, 2016
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AWARD
The June 29, 2015 individual grievance of Ms. Roxanne Rivette-Brancroft
("the grievor") and the Union policy grievance of August 12, 2015, both claim a
"violation of Article 19.01(a) of the collective agreement or any other relevant
articles, caselaw or past practice." Further, the Union policy grievance states:
"Although language demonstrates unity with other unions at [the Employer], the
interpretation and implementation is discriminatory as OPSEU members are
treated differently." Remedy sought in the individual grievance is "...my vacation
entitlement be applied according to Article 19.01(a), full redress or any other
remedy a board of arbitrators would deem. justifiable." The remedy sought in the
Union policy grievance is "Parity with the interpretation [and] implementation of
accrued vacation pay/ accumulation or any other remedy a board of arbitration
would deem justifiable." The Hospital position is there has been no breach of the
collective agreement.
The relevant language of the collective agreement under which the
grievances arise is as follows:
ARTICLE 19 - VACATION
19.01(a) (Article 19.01(a) is applicable to full-time employees only)
All employees who have completed less than one (1) year of
continuous service shall be entitled to a vacation on the basis
of 1.25 days per month for each completed month of service
with pay in the amount of six percent (6%)of gross earnings.
All employees shall receive three (3) weeks' vacation after one
(1) year of continuous service, and four (4) weeks' vacation
after three (3) years of continuous service.
All employees shall receive five (5) weeks' vacation after
thirteen (13) years of continuous service.
All employees shall receive six (6) weeks' vacation after twenty-
two years of continuous service.
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All employees will [sic] receive seven (7) weeks' vacation after
twenty-eight (28) years of continuous service.
NOTE 1: (Any vacation schedule improvements shall be
determined in accordance with whatever system is in place in
the individual hospital for determining vacation entitlement.
In other words, those hospitals that determine vacation
entitlement by a uniform date for all employees shall continue
to do so, and those that determine vacation entitlement by an
anniversary date, or by some other means, shall continue to
do so.)
NOTE 2: Employees who have supplemental vacation
(additional 5 vacation days after 30 years of continuous
service) which was earned between June 28, 2005 and May
25, 2006, shall be entitled to utilize their remaining
supplemental vacation, if any.
The grievor began working for the Hospital as a full-time employee on June
24, 2002 and became a unionized employee in the latter part of 2005. On June
24, 2015, she had completed 13 years of continuous service, referred to by the
parties as a "milestone" year. On that milestone date, the grievor expected an
additional week of vacation entitlement, commonly referred to as "a dump." She
called the manager of the payroll department and "was told I had to complete the
thirteen years prior to gaining entitlement_"
The grievor's "Vacation Bank Earnings Report" is structured on a calendar -
year basis, beginning with for our purposes 2008, which indicates "Vacation
Earned (HOURS)." For calendar year 2008, she accrued 5.38 vacation hours
every two weeks for a total of 140.0 hours from January 1, 2008 to December 16,
2008. She accrued the same number of vacation hours from December 30, 2008
to December 15, 2009 and from December 29, 2009 to December 10, 2010. Her
accrual rate changed to 5.77 hours from 5.38 hours effective May 3, 2011, for a
total annual accrual of 150 hours, and she continued at that rate until June 23,
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2015. The rate changed June 24, 2015 to 7.21 hours from 5.77 hours for a total
accrual of 169 hours. The entry for the period ending July 7, 2015 notes "14th
year." Her accrued vacation time in calendar year 2015 was 4.5 weeks- The
grievor's evidence is she will accrue 5 weeks of vacation "at the end of the
fourteenth year," i.e, in December, 2016. Her vacation "bank" at the end of
2015 indicated a balance of minus 1.73 hours. "When we request vacation time
off, we're entitled to go two weeks into minus and anything beyond minus two
weeks is unpaid vacation time." She understands it is a common practice to use
all vacation time before the end of the year. "If someone has Borne, you can
request to carry it over [to the next year] but to my knowledge, most of the time
it's denied." The grievor said an employee can refer to their pay stubs to know
their amount of vacation at any one time; "it's online, but I'm not able to easily
interpret it."
The grievor has been the Union Local vice-president since March 2015, and
was previously a steward for 4 years. During her tenure as a Union
representative and official, no one from the bargaining unit has come to her
concerning vacation issues.
In cross-examination, the grievor said she has not made a request to carry
over vacation time but was aware another employee had been denied such a
request. She agreed employees under a different collective agreement get a
"dump" regarding vacation entitlement. Her increase in 2011 to 5.77 hours from
5.38 hours occurred when her work hours changed to 37.5 from 35 hours per
week. The grievor agreed that from June 24, 2015 to June 23, 2016, she will
accrue 5 weeks of vacation.
Ms. Charlene Campeau began working for the Hospital on December 19,
1991 and has been the Union Local president since March, 2016, following some
10 years as a steward, chief steward and vice-president. In 2015, the grievor
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raised her vacation entitlement concerns with her. Ms. Campeau's evidence is
that under the parties' Local Issues agreement, art. 8.3 provides for employees to
request to carry over vacation time, but that there is a "new directive" and her
manager told her she, the manager, is to require all employees' vacation time to
be depleted by December 318t each year. Ms. Campeau became entitled to 6
weeks of vacation in 2014 (she started as part-time). She had no knowledge of
members' concerns about vacation entitlement until the individual grievance at
hand. The Union's concern regarding the complaint is it appears that "on the
anniversary date, one can't access that [additional] vacation week. The concern
is because Article Nineteen speaks of entitlement but no access..."
In cross-examination, Ms. Campeau said she is not familiar with the
Hospital's "Vacation" policy. She is aware that vacation accrual -time is indicated
on employees' pay stubs. She agreed that had the grievor not been in negative
vacation in 2015, she would have been able to access her additional week of
vacation.
Ms. Jane Loucks began her employment with the Hospital in July, 1998.
She has held positions with the Union. She was the Local president for 4 years
until March, 2016. She signed the policy grievance at hand as per Union
protocol. Prior to the policy grievance and the individual grievance of Ms. Rivette-
Bancroft, she had never been asked to file a grievance concerning vacation
entitlement. She had not experienced problems with her vacation increment
years in 2001 when she had reached 13 years of experience and in 2010 when
she had reached 22 years of experience. Under the 2009-11 Local Issues
agreement, the vacation calendar year was June 1 st — May 31 st, which changed
under the 2011-14 agreement to January 1St — December 31St.
Ms. Loucks's evidence is that employees were allowed to carry over vacation
time from one calendar year to the next but, "it has become structured, you have
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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to finish your vacation entitlement by the end of December of the current year.
Previously, it was never really enforced in my [work] area. Usually, you carried
over small amounts to the next year."
In cross-examination, Ms. Loucks agreed her amount of vacation time
entitlement accrued every pay period. She agreed that her accrual hours changed
to 8.65 hours per pay period, at July 27, 2010, from 7.21 hours. The former
resulted in 5 weeks' vacation and the latter 6 weeks' vacation. Her pay stub for
July 13, 2010 contains a section "Accruals" at a rate of 7.21 hours and a year-
to-date vacation bank balance hours of -5.40. Her July 27, 2010 pay stub
indicates accrual at the rate of 8.65 hours per pay period and a bank balance of
3.25 hours. She agreed these figures indicate that effective her 13th anniversary
year, she did not get an extra week of vacation in her vacation bank, and was so
aware when she received that pay stub.
Ms. Karin Hagen is currently the director of finance for the Hospital. In
her previous position of payroll financial analyst became very familiar with
vacation entitlement calculations. Her evidence is that a formula is used which
includes an employee's vacation entitlement date and it "applies vacation accrual
by twenty-six pay periods and puts that in the [vacation] bank." By way of
example, an employee with 3 years of experience starting today would accrue
vacation time at the rate of 4.33 hours per each of the 26 pay periods. On the
first day of completing 3 years of continuous service, that employee does not
receive an extra week of vacation, rather, at the end of 12 months the employee
would have "four weeks' vacation in the fourth year."
Ms Hagen said an employee in his or her first year of service can take
vacation in that year, "you can borrow up to two weeks for flexibility of vacation
timing." The ability to borrow up to 2 weeks applies to any bargaining unit
member and not only to first-year employees. Mr. Hagen's chart of the grievor's
Cornwall Community Hospital & OPSEU: Rivette-Branrsoft July 2016
vacation entitlement indicates the on June 23, 2015, she was accruing 5.77
hours for the previous two weeks. For her pay period ending July 7, 2015, she
began accruing 7.21 hours per pay period because she commenced her 14th year
of employment effective her anniversary date of June 24th. The increase in the
increment rate reflects her increased vacation entitlement to 5 weeks from 4
weeks. Ms. Hagen undertook the same review of Ms. Campeau's and Ms. Loucks'
employment records, which show that on their anniversary dates their increment
rates increased, also in accord with the vacation entitlement provisions in art.
19.01(x) of the collective agreement. Further, her evidence is the Hospital's
practice has not changed since 2008. Prior to the grievances at hand, she was
not aware of an objection to the practice, nor aware of a grievance having been
filed by the Union.
Ms. Hagen's evidence is that employees can access their pay stubs for the
year on the Hospital's computer system. Each pay stub indicates "Vacation Bank
Balance Hours" for the pay period and year-to-date total hours. It also indicates
the amount of "Vacation Hours Taken." In regard to Ms. Campeau's pay stub
ending January 7, 2014, it indicates she had 9.03 "Vacation Disallowed Hours",
in that she had attempted to take 45 hours vacation but only had 35.97 hours
available to her.
As concerns the Hospital's practice, Ms. Hagen's evidence is "a couple of
years ago, we noted our vacation liability [i.e., unused vacation time] was going
up, some three million dollars and with salary increases it was more and more.
We weren't enforcing the collective agreement rule of using all your time in one
year.... We asked managers to make sure people took their hours, and, because
they needed [vacation time]." To date, there has been mixed success in reducing
the liability.
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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In cross-examination, Ms. Hagen agreed that for the period ending January
6, 2015, the grievor's accrual rate was 5.77 hours per pay period, which
continued until June 23, 2015, covering 13 pay periods for a total of 75.01 hours
of vacation, or, some 2 weeks of vacation.. Effective the pay period ending July 7,
2015, her accrual rate increased to 7.21 hours until the end of December 2015.
Those 13 pay periods totalled 93.75 hours, or, some 2.5 weeks of vacation, for a
total of approximately 4.5 weeks of vacation accrual in calendar year 2015_
Article 8 of the April 1, 2014 - March 31, 2016 Local Issues agreement
between the parties is titled "Vacation." Art. 8.5 provides for a vacation year of
January 1st - December 31St and art. 8.3 states, in part: "Vacation will be used
before December 31st of each year." It also provides for an employee to request
carry over of "some vacation" which is granted at the discretion of the Hospital if
the reason. is "satisfactory." As to the definition of a vacation year, Ms. Hagen
said, "A vacation year is really twelve months and everyone has a different year.
A vacation year is different from a vacation entitlement year." The central
agreement has no provisions for vacation carry over hours.
The Union submitted the language of art. 19.01(a) is clear and
unambiguous. Vacation entitlement for full-time employees vests at the start of
the year. For example, an employee with 10 years of service has entitlement to a
full 4 weeks' vacation as of January 1 st. In a milestone year, under art. 19.01(a)
employees "shall receive" an additional week of vacation once they reach their
anniversary date of hire. There is no language in that article to support a general
pro -rating or accrual -based vacation system. Rather, the language indicates the
exact opposite_ There is no Local Issues agreement language or central
agreement language that provides for a pro -rating or accrual vacation system. If
these sophisticated parties had so intended, language allowing for such a system
would be in the agreements, but it is not. Rather, where that has been their
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
intention, they express it in the agreement. For example, under art. 19.01(a), an
employee with less than 1 year of continuous service accrues 1.25 days per
month of vacation time for each completed month of service. Further, under art.
19.01(b) the parties clearly express an accrual or pro -rating system for part-time
employees, based on a not -unusual theoretical full-time year of 1650 hours. The
Hospital cannot pluck 1650 hours out of art. 19.O1(b), nor can it pluck the
accrual rate out of it and apply it to full-time employees because art. 19.O1(b)
only applies to part-time employees. Moreover, the Hospital's own policy on
"Vacation", while it provides for pro -rating vacation leave for part-time employees,
makes no mention of such a system for full-time employees. Rather, the policy
states that employees shall be entitled to vacation "in accordance with their
unionized respective collective agreements." Thus, vacation entitlement for the
members of the bargaining unit, in the instant case, vests at the start of the
vacation year, which interpretation is consistent with the language in the Local
Issues agreement and, also, with the general scheme for vacation entitlement in
the central collective agreement.
The Union submitted that art. 8.1 of the current Local Issues agreement,
which provides for employees to notify their department head of vacation
preference by April 15th, is inconsistent with the suggestion employees earn
vacation time over the course of a year but is consistent with their full entitlement
as of January 181. Accordingly, for employees in their milestone year vacation
vests at the rate of entitlement at midnight of their anniversary date.
In the alternative, the Union submitted that if it is found the Hospital can
pro -rate an employee's vacation entitlement, it is still in breach of the collective
agreement because its system prevents employees from accruing their full
additional week in the milestone year, which directly contravenes the mandatory
"shall receive" language in art. 19.01(a). In that regard, there is no language in
Article 19 that provides for a vacation entitlement calculation as of January 1St.
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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Rather, the only pre -condition to receiving the extra vacation week is that one
reaches the level of continuous years of service identified in that article. The
Local Issues agreement language that provides for a January 1St - December 31St
vacation year does not allow the Hospital to imply a cut-off date, and language to
that effect is not contained in the collective agreement. The Hospital's own
practice, in any event, does not employ a January 1St cut-off date because they
increase the accrual rate as at an employee's anniversary date of hire. Even if
the Hospital is allowed to use an accrual system, its obligation under the
collective agreement is for employees to have an additional week of vacation on
their anniversary date in the milestone year.
In specific regard to the individual grievance, the grievor's anniversary date
is June 24th and on that date in 2015, she reached 13 years of continuous service
and, thus, was entitled to 5 vacation weeks. However, because of the way the
Hospital implements its accrual system, the grievor had access to only 4.5 weeks,
bearing in mind that employees are required, since at least 2014, to use all
vacation time by December 318t. While the grievor in 2016 starts accruing
vacation time as at January 1St, and will get 5 weeks in that year, she does not
get 5 weeks in her 2015 milestone year and she cannot carry over the .5 weeks
from 2015 for a total of 5.5 weeks. Rather, the first occasion when she can access
5 weeks of vacation time occurs 18 months after her 13th anniversary year. This
interpretation and application of art. 19.01(a) is inconsistent with the language
of the article. Moreover, under the Hospital's interpretation, she will never get
the .5 vacation week she missed in 2015. Moreover, in her 22nd and 28th years
of continuous service, the same circumstances of not being able to utilize her full
milestone entitlement will repeat.
The Union submitted that the Hospital's approach to vacation entitlement
leads to different results for different employees and is, therefore, inconsistent.
In contrast to the grievor's circumstance of a June 241h anniversary date, neither
Cornwall Community Hospital & oPSEU: Evette-Brancroft July 2016
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Ms. Campeau nor Ms. Loucks have been prejudiced. Ms. Campeau's anniversary
date in December allows her to accrue her entire extra week in her milestone
years_ In the case of Ms. Loucks, her 22 years of service occurred on July 25,
2010, at which time the vacation year ran from June 1 St to May 31 St, so she was
able to receive her full entitlement of vacation weeks. It is fundamentally unfair
that they effectively enjoy a greater vacation benefit than does the grievor under
the collective agreement.
In regard to the Hospital's past practice regarding vacation entitlement, the
Union submitted that evidence is only admissible as an aid to interpretation if
the collective agreement language is found to be ambiguous; since it is not, that
evidence is neither admissible nor relevant. In any event, the Hospital's past
practice has not been consistent. Access to and use of vacation entitlement does
not depend on only the accrual system, but involves 2 other factors: the matter
of carry over, and, matching the calendar year with the vacation year. Between
2009 and 2015, the vacation system has fluctuated in that carry over has
changed; it has been in and out of Local Issues agreement. As well, the Hospital's
enforcement of its carry over policy has changed, as has the vacation calendar
year. Consequently, it was argued, there has been no consistent past practice
agreed to by the Union. There is also no evidence the Union acquiesced in or
knew of the Hospital's practice, in particular its negative effect in the employee's
milestone year. Further, all Union witnesses testified that no one raised the issue
of vacation entitlement prior to the grievances at hand. As to the Hospital's
evidence in the form of pay stub vacation information, what is highly relevant to
that matter is that it called Ms. Hagen, who has some 8 years of experience in
these matters, to explain how the system works; which, in any event, is but a
local practice at one hospital, but which practice cannot be used to inform the
language of the central collective agreement.
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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In support of its position on the merits of the grievance, the Union
submitted Re Levi Strauss & Co. (Canada) Inc. v. U.N.I. T.E.-HE.R.E. Local 2345,
2006 CarswellOnt 10084, [2006] O.L.A.A. No. 435, 86 C.L.A.S. 181 (O'Neil); Re
Donwood Institute and OPSEU, Local 541, 1996 CarswellOnt 6303, 45 C.L.A_S.
303 (Saltman); Re Lancia -Bravo Foods v. Amalgamated Meat Cutters and Butchers
Workmen of North America, 1977 CarswellOnt 684, 14 L.A.C. (2d) 347
(Weatherill); Re Federated Co-operatives Ltd. v. Miscellaneous Employees
Teamsters, Local 987, 2004 CarswellAlta 1139, [2004] L_V.1. 3484-5, [20041
C.L.A.D. No. 234 (Ponak); Re Lennox & Addington Community Mental Health
Services Inc. and SEIU, Local 204, 2004 CarswellOnt 10614, 77 C.L.A.S. 465
(Reilly); Re Kitchener -Waterloo and Regional Ambulance and C. U.P.E., Local 791,
(January 17, 1994) unreported version (Rayner); Re Lutheran Community Care
Centre and O.P. S.E. U., Local 738, (April 11, 2013) unreported version (Abramsky)
Re Servico Ltd. v. C.E.P., Local 803, 2004 CarswellOnt 2771, [2004] L.V.I. 3471-
9, [2004] O.L.A.A. No. 282, 77 C.L.A.S. 306 (Knopf), and, Re Humber College and
OPSEU, Local 562 (Lung), 2016 CarswellOnt 1654, 125 C.L.A.S. 339 (Jesin).
The Hospital submitted the language of art. 19.01(a) is clear and not
ambiguous. This case is about the accrual of a benefit over a year. At its
simplest, this case is about the language of art. 19.01(a) which provides for an
employee to get x years of vacation after y years of continuous service. The
language provides for vacation accrual over the course of a year. This
interpretation is supported in 3 ways: (1) the clear language of art. 19.01(a), (2)
common sense and, (3) caselaw.
The Hospital submitted there are two common models concerning vacation
entitlement. The most common is the "future year" model where employees earn
but cannot access earned vacation until the close of the vacation year, for
example, as provided for in s.33(1) of the Employment Standards Act.: "An
employer shall give an employee a vacation of at least two weeks after each
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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vacation entitlement year that he or she completes." The second model, "present
year", allows an employee to earn and use vacation time in the same year. The
language of art. 19.01(a) is a "present year" system and provides for a specified
accrual rate in the first year of service and, then, increasing accrual rates over
the following years after hitting milestone years of 3, 13, 22 and 28, respectively.
When an employee reaches his or her milestone date, i.e., the anniversary date
of employment, there is an increased vacation entitlement. The amount of
entitlement is set out in art. 19.01(b). While that article applies to regular part-
time employees, it is trite law that a collective agreement is to be read as a whole.
Art. 19.01(b) sets out full-time entitlement and how it applies to them. Moreover,
the section entitled "Vacation Entitlement (FT)" contains nothing that assists with
the interpretation of part-time employees' rights and entitlements. Thus, for full-
time employees it is clear they accrue vacation entitlement according to the
provisions in that 2nd column in art. 19.01(b). Further, there is no language in
art. 19.O1(a) which states an employee receives milestone weeks in the milestone
years. As to the Union's reliance on the grievor's circumstance of having 4.5
weeks in her milestone years, nothing in the language of art. 19.O1(a) provides
for 5 weeks in a calendar year or in a vacation year for that matter. To accept
the Union's interpretation would require re -writing its language to state that an
employee "receives 5 weeks in the year he or she reaches 13 years of continuous
service"; rather, art. 19.01(a) clearly states that 5 week entitlement occurs "after
the 13 years of continuous service."
The Hospital submitted the evidence of its carry over practices only needs
to be used if the Union's interpretation is favoured. However, that evidence is a
"red herring", not relevant, and, not necessary to decide the case. Even if the
carry over evidence is found to be relevant, in its submissions the Union conflates
accrual of vacation time with use of vacation time. In that regard, it's not
disputed the grievor, over the 12 months following her 13 consecutive -year
Comwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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milestone, received 5 vacation weeks based on her accrual rate and had
opportunity to use those 5 weeks.
The Hospital submitted that its interpretation, and application thereof, for
at least 8 years is consistent with the language of art. 19.01(a) to wit: employees
accrue the vacation amounts of time after each milestone date and the accrual
rate immediately increases over the 12 months following their milestone date.
Further, the Hospital's application of art. 19.01(a) allows employees the benefit
of a "future year" model, given the flexibility for employees to use up to 2 vacation
weeks in the negative.
Should, however, it be deemed necessary to look beyond the language of
articles 19.01(a) and 19.01(b), common sense helps to resolve the issue. The
Union's interpretation gives the employees the best of both worlds, namely, what
has been bargained for, a "present year" model, and the better features of a
"future year" model. According to the Union, on the first day of an employee's
2nd year of work he or she would get another 3 vacation weeks, so that after 1
year and 1 day of work that employee has 6 vacation weeks. If that is to occur,
one needs specific language in the agreement but that, in any event, was not
intended by the parties.
The Hospital submitted the Union's alternative position also defies
common sense_ According to the Union's position, the grievor would accrue 5.77
hours per pay period and then on her 13th year milestone she gets another week
and continues at the accrual rate of 5.77 hours, a "bizarre outcome" whereby the
employee would accrue vacation of 3 weeks and receive 2 weeks in his or her
bank on the anniversary date of hire.
The Hospital submitted that the past practice evidence in aid of
interpretation in the instant case meets the 4 -fold test in Re Intl Ass'n of
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
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Machinists, Lodge 1740, and John Bertram & Sons Co. Ltd., 1967 CarswellOnt
782, O.L.A.A. No. 2, 18 L.A.C. 362 (Weiler). Thus, if it is found there is no clear
preponderance of meaning of art. 19.01(a) language, the Hospital's conduct is
unambiguously based on the interpretation it espouses, in that all witnesses
agree that vacation time is accrued; Union acquiescence in the Hospital's
application for a long period of time, in that no objection had been made to it
prior to the grievances at hand, and, fourthly, Union officials Ms. Loucks, Ms.
Campeau, and the grievor had no concerns about either the practice of accrual
or no dumps of an extra week on anniversary dates. The practice, moreover, was
open and notorious.
The Hospital submitted that under its interpretation of art. 19.01(a), there
is no differential or differing treatment of employees; they accrue the same
amount of vacation time when they work the same amount of time based on their
anniversary date of hire.
In support of its position on the merits of the grievances, the Hospital also
submitted Re Niagara Health System and SEIU. Local 1, 2006 CarswellOnt 10349,
84 C.L.A.S. 235 (Brent); Re Cochrane Temiskaming Resource Centre and OPSEU,
Local 664, 1996 CarswellOnt 5405, [1996] L.V.I. 2798-1 (Burkett); Re Donwood
Institute, supra; Re Humber Memorial Hospital and OPSEU, 1995 CarswellOnt
6788, 39 C.L.A.S. 159 (Springate); Re Owen Sound General & Marine Hospital V.
O.P. S.E. U., 1980 Carswell 1159, 25 L.A.C. (2d) 419 (Beck); Re Centenary Health
Centre and OPSEU, Local 574, 1993 CarswellOnt 5770, 31 C.L.A.S. 240
(Mitchnik); Re Eastern Ontario Catholic District School Board and OECTA, 2015
CarswellOnt 613, 121 C.L.A.S. 225, 250 L.A.C. (4th) 293 (R. Brown), and, Re
Canadian Labour Arbitration, 4th ed. (Aurora,Ont.: Canada Law Book, Inc.), para.
8:3210.
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In reply, the Union submitted that the evidence in regard to carry over
highlights the absurdity of the Hospital's interpretation. As in the grievor's case,
she was entitled to 5 weeks in the 13th year of service from her anniversary date,
but it was not possible for her to take that entire time. Nothing in the collective
agreement allows for a negative vacation bank.
The issue to be determined in this award is whether or not the Hospital
improperly calculates the grievor's and employees' vacation entitlement. I find
the merits of the grievances, on the evidence and submissions before me, require
determination of the proper or correct interpretation of the language of art.
19.01(a) of the collective agreement. The fundamental arbitral task in
interpreting collective agreement language is addressed in Brown and Beatty,
supra, at para. 4:2100, as follows:
As one arbitrator, quoting from Halsbury's Laws of England, stated
early in the award:
"The object of all interpretation of a written instrument is to discover
the intention of the author, the written declaration of whose mind it
is always considered to be. Consequently, the construction must be
as near to the minds and apparent intention of the parties as is
possible, and as the law will permit."
And further:
"But the intention must be gathered from the written instrument.
The function of the Court is to ascertain what the parties meant by
the words they have used; to declare the meaning of what is written
in the instrument, not of what was intended to have been written; to
give effect to the intention as expressed, the expressed meaning
being, for the purposes of the interpretation, equivalent to the
intention."
... in determining the intention of the parties, the cardinal
presumption is that the parties are assumed to have intended what
they have said and that the meaning of the collective agreement is
to be sought in its express provisions.
Cornwall Community Hospital & OPSETJ: Rivette-Brancroft July 2016
17
In applying the above approach to the matter at hand, I note the grievor
is a full-time employee and thus, art. 19.01(a) which applies only to full-time
employees governs her vacation entitlement, relevant for our purposes, as
follows:
19.01(a)
All employees shall receive five (5) weeks' vacation. after
thirteen (13) years of consecutive service.
Highly similar language is dealt with in the Lennox & Addington award.
The relevant collective agreement provision before arbitrator Reilly is contained
in art. 22.01(b), e.g., "three (3) weeks'vacation after one (1) year of service."
The arbitrator discerned no ambiguity in the language in stating, at para 86:
An employee who remains employed after the first year of his or her
employment or "service" would thereafter be entitled to three -weeks'
vacation entitlement and time off for purposes of this entitlement
commences immediately after midnight on the first anniversary of
the employee's original start date and I so find.
I concur with the conclusion reached by arbitrator Reilly_ Thus, I find
nothing ambiguous in the language of art. 19.01(a) before me. In the instant
case, the grievor's anniversary date of hire is June 24, 2002. June 25, 2015
was the first day following her 13 years of continuous service, therefore, as at
that date she was entitled to 5 weeks' vacation. The Hospital, however, credits
that vacation time entitlement by way of an accrual system which pro -rates the
time on a two-week pay period basis.
In Re Federated Co-operatives, supra, the employer pro -rated vacation
entitlement time for full-time employees on maternity or paternity leave: "For
example, an employee on leave of three months (i.e., 25% of a year) would have
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
18
his or her vacation entitlement reduced by 25% in the year following the leave"
(para. 1). The union objected to the Policy on the grounds the collective
agreement, "... based vacation entitlement on the length of continuous service
and made no provision for pro -rating' (para. 1). In Article 9 of that collective
agreement, vacation provisions are highly similar to those of art. 19.01(a) before
me, for example: "Clause 2 -- Employees after completing eight (8) years'
continuous service shall receive four (4) weeks' vacation with pay" (Emphasis
added.) Arbitrator Ponak upheld the grievance in finding, at para. 30, "There
are no restrictions in Article 9 or elsewhere in the collective agreement that limit
Article 9. The authorities make it clear that restriction on vacation entitlement
must be plainly set out in the collective agreement and in the absence of any
restrictive language it can be inferred no restrictions were intended." (See also
Re Kitchener -Waterloo, supra, where arbitrator Rayner found that absent
language providing for pro -rating of, in that case sick leave credits, pro -rating
was not permissible.)
In Re Lutheran Community, supra, relevant for our purposes, art. 20.05 of
that collective agreement addresses the matter of a new employee's entitlement
to sick leave days as follows: "A new employee will have their allocation [of sick
days] pro -rated according their employment date." It also addressed sick day
allocation for part-time employees, "Employees working less than forty (40)
hours per week will have their sick day allocation pro -rated." The employer
argued that the notion of pro -ration applied to full-time employees when they
were absent on maternity leave. Arbitrator Abramsky rejected the employer's
position, at p.20, as follows:
The pro -ration for part-time employees does not support the
conclusion that sick leave for full-time employees on leave should
also be pro -rated. Rather, it indicates that part-time employees'
entitlement is not the same as full-time employees, and their
allocation is based on a comparison of their hours compared to full-
time employees.
Cornwall community hospital & OPSEU: Rivette-Brancroft July 2016
19
In Re Levi Strauss, supra, the union contended the grievor was owed
"vacation pay for any vacation days booked and taken prior to his resignation
date." The company claimed "no vacation pay is owing, as it was entitled to
pro -rate the amount of vacation pay during the year in which the grievor
resigned" (para. 1). The grievor had worked over 9 years for the company, had a
seniority date of January 20, 1994, and resigned on July 2, 2002. Article 7.1 of
that collective agreement is as follows:
7.1 An employee shall receive an annual vacation with pay in
accordance with his/her years of employment, as follows:
d) employees with nine (9) years or more service, but less
than nineteen. (19) shall receive twenty (2 0) working days.
7.6 [in part] Vacations must be scheduled and taken within the
calendar year.
The grievor took his full vacation entitlement prior to his resignation.
Relevant for our purposes, the union position was that the grievor, as of
January 20, 2004, was entitled to 20 working days of vacation under art. 7.1
(para. 18). The company position was that he was entitled to only 10 working
days of vacation since he resigned halfway through 2004, the vacation year
being the calendar year. That is, the company contended vacation time accrues
during the calendar year and is taken during that year (para. 18). Arbitrator
O'Neil framed the issues to be determined, at para. 17:
The main issue to be determined is whether or not the grievor
earned the twenty days of vacation he took prior to his resignation
on July 2, 2004. Secondly, it falls to be determined if he was
entitled to full pay for those days, or if the company was entitled to
pro -rate the pay, and recover money from the grievor for any over-
payment.
Cornwall Community Hospital & OPSEU: Rivette-Srancroft July 2016
20
On the main issue, the arbitrator rejected the company's position that the
grievor (at para. 20) was only entitled to 10 vacation days; "_ that is not what
the collective agreement provides. It provides that once a level of service is
reached, a quantity of vacation days is available." In specific regard to the
impugned language, arbitrator O'Neil states, at para. 20:
The word annual [in art. 7.11 does not, without more, connote a
system where entitlement accrues each day or month that an
employee works. It has the ordinary meaning of once a year....
Asking the question: How would the vacation accrue? - daily,
weekly or monthly -- demonstrates that the collective agreement
does not provide an answer for an employee with more than one
year of service. In the circumstances, the union's argument as to
entitlement of the grievor to twenty days' vacation is to be
preferred, as it gives meaning to the language as written without
adding other wording....
Purther, the arbitrator found "no authority in the collective agreement for pro-
rating the payment" (para. 21).
The Federated Co-operatives, Lutheran Community, Levi -Strauss, and
Kitchener -Waterloo awards are consistent in finding that, absent express
language in the collective agreement, an employer is not entitled to pro -rate a
benefit such as vacation entitlement or sick pay entitlement. In the instant
case, there is nothing in art. 19.01(a) that expresses an ability on the part of
the Hospital to pro -rate an employee's vacation entitlement. And while the
Hospital submitted that the matter of vacation entitlement "increment" in art.
19.01(b) for part-time employees supports application of pro -rating full-time
vacation entitlement, that article expressly states that it is "(... applicable to
regular part-time employees only)." Given the clear, unambiguous language of
art. 19.01(a), and the absence of any reference to pro -rating in that language, it
is not proper to float a reference to "full-time increment" in art. 19.01(b) to art.
Cornwall Community Hospital & OPSEU: Rivette-Brancroft JuIy 2016
21
19.01(a), which reference intends to set out equivalencies for regular part-time
employees for the sole purpose of vacation entitlement calculations.
Based on the foregoing, I find the grievor was entitled to 5 weeks' vacation
effective June 25, 2015 and the Hospital inappropriately pro -rated that
entitlement. Having so found, it arises for determination as to when the grievor
was entitled to use her 5 weeks' vacation. Relevant for our purposes, in Brown
and Beatty, supra, it is stated at para. 8:3210, that:
Vacation benefits... have been characterized by arbitrators as
earned benefits forming part of the total compensation package.
Typically, entitlement to vacation benefits occurs in the vacation
year following the one in which it was earned.
In Re Niagara Health System, supra, a number of institutions were
merged into one. Vacation entitlement, vacation year and "the way in which
vacations were granted were not handled the same way in each of the eight
institutions" (para. 2). Sometime after the merger, the parties entered into a
Memorandum of Settlement that affected vacation in two bargaining units.
Relevant for our purposes, the Memorandum (at para. 5) contained the
following:
The vacation year for full-time and part-time employees will become
July 1 to June 30. Employees will be able to take vacation as it is
earned but in no case will employees be able to take vacation time
not already earned.
Relevant for our purposes, arbitrator Brent provided the following example of
how vacation entitlement worked where a specified vacation year was provided
for, at para. 9:
Let us assume that someone is hired on June 30, 2003 and works
a full year. As of June 30, 2004, that person will still be an
Cornwall Community Hospital & OPSEU: Rivette-Branr-roft July 2016
22
employee and will have completed one year of service and thus,
having satisfied the condition, becomes entitled to two weeks of
vacation [under art. 21.01] with full pay that can be taken in the
year beginning July 1, 2004. Before July 1, 2004, the employee is
not entitled to take that vacation; the right has not been vested and
is still conditional.
As can be seen from the Niagara Health award, there is a distinction
between the time when an employee earns vacation entitlement and when that
entitlement can be taken. As made clear by arbitrator Brent (at para. 9)
vacation earned in one year is taken in the following year. The Humber
Memorial award also addresses this distinction.
In Re Humber Memorial Hospital, supra, the grievances involved
application of retroactivity dealt with in an interest award and the extent to
which retroactivity did or did not apply to the different circumstances of two
grievors. In that case, the collective agreement, at art. 26.01(a), provided for
vacation entitlement based on years of continuous service, e.g., "... four (4)
weeks' vacation after five (5) years of continuous service." Also, in. the Local
Issues agreement, art. 26.04 contained the following: "The vacation year will be
in accordance with the fiscal year from June 1 st of any year to May 31 st of the
following year." Relevant to our purposes, the employer contended that,
"implicit in having a vacation year is the use of a cut-off date" (para. 31), while
the union argued that the employer "is improperly trying to add `as of May 31st'
to Article 26.01 of the collective agreement" (para. 32). In, commenting on the
union position, arbitrator Springate states, at para. 34: "Presumably the
Union's position is that the vacation year relates only to when vacations are to
be taken and is not related to when vacation entitlements are to be determined
[such that the grievor] should have her vacation entitlement determined part-
way through the 1993-94 vacation year so that she could take immediate
advantage of her anniversary date [i.e., January 6, 1986]." It would seem that
the arbitrator considered, both, the employer's past practice of using the cut-off
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
23
date of May 31St to calculate vacation entitlement and, as well, relied on the
unambiguous language of the collective agreement to allow one grievance and
dismiss the second grievance.
In the instant case, the parties, in art. 19.01 (a), use the word "after" years
of continuous service to identify the different amounts of vacation weeks to
which employees are entitled as in e.g., Humber Memorial, supra, Federated Co-
operative, supra. Thus, the grievor earned 5 weeks' vacation once she had
completed 13 years of continuous service as at June 25, 2015, the day after 13
years. As to when she was entitled to use that vacation time, that matter is
addressed in the Lancia -Bravo award_
In Re Lancia Bravo, supra, a company policy of providing for a cut-off
vacation year date (December 31St) was superceded by the provisions of the
parties' first collective agreement which, at art. 29, provided for a formula
highly similar to that in art. 19.01(a) of the collective agreement at hand, for
example: 3. "2 weeks after 1 year of service..." (Emphasis added). Relevant for
our purposes, arbitrator Weatherill states, at para. 7:
"The collective agreement now in effect makes no provisions for a
cut-off date.... 4n the clear language of the collective agreement, an
employee becomes entitled to two weeks' vacation "after I year of
service," and it is not necessary for him to wait until the completion
of the calendar year in which the anniversary may occur in order to
enjoy such vacation..."
And further, at para. 8: "... there is nothing in the collective agreement which
would postpone the enjoyment of the vacation benefits it provides until after
such benefits as had already been earned under the previous policy had been
enjoyed."
Cornwall Community Hospital & OPSEU_ Rivette-Brancroft July 2016
24
In Re Donwood Institute, supra, arbitrator Saltman framed the issue to be
determined, at para. 1: "This case deals with credited service for vacation
entitlement. More particularly, the issue is whether such service is to be
calculated as of an employee's anniversary date or as of a cut-off date, in this
case, April 1 st of any year." The collective agreement before arbitrator Saltman
contained a vacation formula, at art. 26.01(a), for full -tune employees highly
similar to art. 19.01(a) of the collective agreement at hand, for example, "All
employees shall receive five (5) weeks' vacation after fifteen (15) years of
continuous service..." (Emphasis added.) This case is distinguishable in that
there is no dispute an employee's date of hire is used to calculate continuous
years of service. Nonetheless, in favouring the union's interpretation, that it is
the anniversary date of hire that calculates continuous service, arbitrator
Saltman dealt with the employer's argument, namely, past practice evidence
was admissible for determining ambiguity, arising from the word "after" in the
context of the impugned provision. The arbitrator determined, at para. 5, that
the past practice of calculating service as at April 1St, "... is inconsistent with
the terms of the collective agreement which require [calculation] as of the
anniversary of an employee's date of hire."
The Lancia Bravo and Donwood awards seem to indicate that where there
is only reference to an employee's anniversary date of hire for purposes of when
he or she can take the vacation entitlement provided for in the collective
agreement, that entitlement becomes immediately available once the
anniversary date has been met; "... it is not necessary for him to wait until the
completion of the calendar year in which the anniversary may occur to enjoy
such vacation" Re Lancia -Bravo, supra, para. 7. However, where there is a
provision in the collective agreement which deals with the matter of when
earned vacation may be taken, a different conclusion is reached.
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
25
In Re Owen Sound, supra, Article 24 — Annual Vacation, provided for a
vacation year of January 18t to December 31St "... used for computing vacation
pay" (art. 24.01) and for a formula for calculating vacation entitlement and pay,
e.g., "24:04 An employee on the payroll who has completed three years of
service will be granted three weeks' vacation and paid six percent of gross
earnings." The union took the position that "... if during 1979 an employee
were to complete three years of service on her anniversary date of, say, October
1, that employee should be entitled to three weeks of vacation for 1979 as of
October 1 in accordance with the terms of Article 24.04" (para. 3). For its part,
the employer contended, at para. 4, that.
Article 23 read as a whole sets the calendar year as the cut-off date
for determining length of service and for computing vacation pay.
This would mean that on December 31St in any year the Hospital
would look at each employee's anniversary date in the past year
and determine the vacation earned in that year to be taken in the
following year. That is, if an employee were to have completed
three years of service on her anniversary date of April 1, 1979, the
Hospital, as of December 31, 1979, would determine that for the
1979 year that employee had completed three years of service and
would be entitled to three weeks' vacation to be taken in 1980.
Arbitrator Beck found in favour of the employer's interpretation., as
follows, at para. 5:
Article 24.01 sets out the calendar year for computing vacation pay.
A calendar year is not set out for determining the amount of
vacation entitlement as that clearly is to be determined by length of
service. This is a far different thing from saying that one is entitled
to three weeks of vacation in that year when the three year
anniversary date arises in that year. [Emphasis in original.]
Certainly it may be said that the completion of three years of
service in the year entitles an employee to three weeks of vacation
in the following year when the Hospital is determining vacation
entitlement in the year of the anniversary date. What the Union is
arguing for is immediate entitlement in the year of the anniversary
Cornwall Community Hospital & OPSEU: Rivette-Branr-roft July 2016
26
date. This result seems to me to be inconsistent with the structure
set up by Article 24 which taken as a whole provides a logical and
workable annual paid vacation plan based on a percentage of gross
earnings for the year and years of service as determined by the
anniversary date of employment in the year, both of which must be
calculated together as a single vacation entitlement at the end of
the year.
In Re Centenary Health Centre, supra, the grievor resigned on April 5,
1991, having commenced employment on September 14, 1987. Under art.
26.01, "Vacation entitlement for employees will be completed as at May 31st in
each year." Article 26.01(a) provided for, "four (4) weeks' vacation after three (3)
years of continuous service." (para. 2). The employer credited the grievor with
three weeks' vacation pay on May 31, 1990 (para. 3), i.e., 3 weeks' vacation
after 1 year of continuous service pursuant to art. 26.01(a). The employer
credited the grievor "with a pro -rata share of her vacation pay calculated for the
period between June 1, 1990 and April 5, 199 1, the pro -rata calculation based
on 3 weeks of vacation" (para. 3). The union contended the calculation ought to
have been based on 4 weeks of vacation. In that regard, the union claimed the
grievor's entitlement to 4 weeks vested on May 31, 1991., thus, as of April 5,
1991, she was entitled to 10/ 12ths of 4 weeks of vacation pay (para. 4).
Arbitrator Mitchnik rejected the union position, at para. 6:
More broadly, the cases have long demonstrated... that the
distinction in vacation entitlement clauses essentially, is that
between individual "anniversary -date" clauses and "qualifying" or
"cut-off" date clauses....
In the present case, the language is clear in its establishment of a
qualifying date, and we find nothing in the traditional kind of
language used here which would cause us to conclude that there is
one level of benefit contemplated for the taking of vacation in a
given June 1st - May 31St annual period, but another, higher one, if
the employee leaves in that period of time and the claim is only for
vacation pay. Absent anything else in the agreement, it seems to
us that once the "qualifying date" system for vacation entitlement
has been adopted, the most natural interpretation is that either the
Cornwall Community .Hospital & OPSEU: Rivette-Brancroft July 2016
27
"qualifying date" for the next level is reached, or it is not, and the
level of entitlement of the employee to both aspects of the benefit is
determined in tandem. The Union does not argue here that the
grievor was entitled to 4 weeks' vacation prior to reaching May 31,
1991, nor could it without reading the "qualifying date" provision
out of the agreement.
In .Re Cochrane Temiskaming, supra, the collective agreement provided
for, at art. 18.01, vacation credits to be earned at the rate of "one and one-
quarter (11/4) days per month of service..." (para. 2). This case is clearly
distinguishable in that there is no such provision in art. 19.01(a) of the
collective agreement before me. Nonetheless, relevant to our purposes,
arbitrator Burkett states, at para. 6: "There were no awards referred to us nor
are we aware of any, where, even though vacation entitlement is made
conditional upon years of service, it has been found that vacation entitlement is
to be calculated as of an employee's anniversary date where there is a
calculation date."
As can be seen from the Owen Sound, Centenary and Cochrane awards,
where there is a provision in the collective agreement that deals with the time
when vacations are calculated or when vacations occur, that provision
supersedes an employee's anniversary date of hire in consideration of when
earned vacation entitlements can be used or taken.
In the instant case, there is nothing in art. 19.01(a) that addresses the
matter of vacation time period. However, the parties' Local Issues agreement in
effect at material times, states at art. 8.3: "The vacation year is January 1 to
December 31 of each year." When the provision for a vacation year is applied to
the grievor's circumstances, she completed her 13 years of continuous service
and earned 5 weeks' vacation effective June 25, 2015. In that "entitlement to
vacation benefits occurs in the vacation year following the one in which it was
earned" Brown and Beatty, supra, para. 8:3210, the grievor is entitled to use
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016
28
her 5 weeks' vacation in vacation year January 1, 2016 — December 31, 2016,
which finding is in accord with the unambiguous language of art. 19.01(a),
namely, use of the term "after" therein. Further having found the language of
art. 19.01(a) is clear and unambiguous, the past practice evidence before me is
inadmissible in aid of interpreting the language of the collective agreement.
Based on all the foregoing, I find the Hospital breached art. 19.01(a) of
the collective agreement.
The grievances, therefore, are allowed. I remain seized of my jurisdiction
in the event the parties experience any difficulty in implementing this award.
Dated at Toronto, this 11th day of August, 2016.
William A. Marcotte
Arbitrator
Cornwall Community Hospital & OPSEU: Rivette-Brancroft July 2016