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HomeMy WebLinkAboutUnion 99-06-14 .C f,.... . . , ~ -..... " \ . I , I . ":i :. fi , . CAAT LA) V '~C1AOOl L.<056 AND: ONTARIO PUBLIC SERVICE E:MPLOYEES' UNION A hearing was held in this matter at Sudbury, Ontario on May 5, 1999 .. "., IN THE MA'ITER OF AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE AND 1N THE MA'ITER OF GRIEVANCE #99AOOl O.B. SHIlVIE, Q.C. CHAIRPERSON R. HUBERT NOMINEE FOR THE COILEGE J.McMANUS NOMINEE FOR THE UNION APPEARANCES: D.K. GRAY COUNSEL, and others for the College . JA RYDt:R, 'Q.C. COUNSEL, and others for the Union : ", ~ ~ f1 I," , I ..~"", .~"...... ~.' "".:~., ,'," ~o: i' .. . AWARD In this matter the Union claims that the College has failed to calculate correctly the vacation period of full-time employees pursuant to Article 15.01(a). The issue is more particularly defined in correspondence between the parties which is as follows. On May 6th. 1998, Mr. Bill Kuehnbaurn, an employee, wrote the following letter to the College: Denise Rantcourt Human Resources Cambrian College Dear Denise: Re: Sick and Vacation Credits . 1998/1999 I believe that my vacation credits as identified in your memo of ~j8/04f09 are incorrect. Based on my telephone discussion with you, I think the errors are as follows. 1. When I worked in May and June 1997 you credited me WIth 4.3 days of vacation per month. I should have received 4.5 days per month. 2. You have credited me with 43 vacation days for the 1997/98 academic year. I believe I should be credited with 45 days. The collective agreement, article 15.01A, is the foundation for confirming that your calculations are in error. One academic year's service (10 months) yields a two-month vacation. Unless I take vacation in February, two months yields 45 working days. Therefore every month's service earns 4.5 days of vacation credit. Please correct my records and notify me about my revised credits. Thank you, Bill Kuehnbaum 'l"....-.-.' . , , J ~ 2 c. J. Closs1 President, OPSEU Local 655 J. Filo, Chief Steward, OPSEU Local 655 After the Step 1. meeting, the College wrote to the Union as follqws: June 12, 1998 Mr. John Filo OPSEU Local 655 Cambrian College Dear Mr. Filo: ~ Re: Union grievance reo Vacation dated June 1, 1998 This letter confirms that the Step 1 meeting concerning this grievance took place on June 10, 1998. -Jhe Union indicated that the grievance is based on the- letter from Bill Kuehnbaum to Denise Rancourt dated May 6, 1998 and concerns. the College's calculation of academic vacation entitlement. Specifically, Mr. Keuhnbaum questioned why he was accorded 43 vacation days, instead of 4ti days. Article 11.03 provides that the academic year shall be 10 months in duration and shall be from September 1 to the following' June: 30, to' the extent it be feasible. Therefore, the 2-month. vacation period which most faculty are entitled to., if they have completed one full academic years service, falls at the end of the academic year, in July and August. At Cambrian, the usual , practice is for faculty to take vacation from. mid-June until mid-August. During that 2-month period, there are 43 working days. In order to accommodate faculty who take vacation during the academic year, the College allows faculty to accrue vacation "credits" of 4.3 days per month, which are calculated based on the entitlement of 43 days over the IO-month academic year. The College believes that its interpretation is' reasonable and consistent with the collective agreement. ,........", f ) In addition, it is the College's position that this grievance is not a proper Union grievance, because it includes a matter upon which an employee --I -. I ".1- 1-," . , . -" ,~,. .,'". I', .. ~ 3 would be personally entitled to grieve (and in fact it was"BilI keuhnbaum who raised the issue in the first place). Accordingly for these reasons the College denies the grievance. Yours very truly, Susan Pratt Staff Relations Consultant Subsequently, on September 30, 1998, the College wrote to tlle Union as follows: ~ " Mr. R. Bivens Chief Steward OPSEU Academic Local 655 Cambrian College Dear Mr. Bivens: We met to discuss the union grievance regarding the calculation of vacation-- for full time employees September 23, 1998. o The Union put forward two points. To begin with, the union felt that this was -. properly a union grievance as it felt the individual who brought the matter to their attention was only an illustration of the problem, that the matter was - systemic and related to how the College calculated vacation for all full time faculty. Second, the Union said the contract was specific that vacation was to be 2 months and they felt that the standard for every two month period was 45 working days. The fact that there were two statutory holidays in the College time period for faculty vacation was an unusual occurrence. The College referenced the answer at step 1 of the grievance process as covering the basics of the matter from the College perspective. The College explained that the normal vacation period for faculty at Cambrian was mid June to mid August, a 2 month period that encompassed 43 working days and 2 statutory holidays. The College explained that in order to accommodate faculty who split vacation and/or took vacation at other times, it allowed faculty to accrue to the standard of the normally assigned vacation "\ ~ ~ . I. , .1 .. ..-, r '. t.!'". 4 period, which is 4.3 days per month. This does not disadvantage ~aculty who take vacation time in periods where there is less than 43 working days and/or who have not worked a full academic year. The College felt that its practice is not only fair and reasonable, it is also in accordance with the intent of the language of the collective agreement. The College also said that this practice has been long established at Cambrian and, as a result, the Union is estopped or prevented from raising it now. For the foregoing reasons, it is my opinion that this grievance must be denied. Sincerely, I. Filion Vice-President, Academic cc Human Resources The Union submits that this grievance is concerned with the vacation entitlement for full- time employees who work less than ten months, and maintains the College is not properly applying Article 15.01A of the Collective Agreement. The Union argues that there is no reference in Article IS.0IA to allowing 43 days of vacation for the ten months, and also, there is no reference to any particular period for-the two months vacation. The Union further asserts that the Collective Agreement does not provide for the elimination of statutory holidays so as to reduce the vacation entitlement. The Union agrees with the College that in order to prorate the vacation entitlement it is necessary to break it down into days, but submits that there are 261 paid days in a year, and that the annual salary over twelve months covers teachlngdays, statutory holidays and vacation days. In . ". I i ' .1 ..1.1.,. ~ effect, everything is covered but weekends, so that if the weekends. are eliminated it leaves (365 .. 104) 261 days. The Union maintains that the average month has (261 .;. 12) 21.75 paid days and therefore two vacation months have (21.75 x 2) 43.5 vacation days. The Union submits that each teaching month produces 4.35 vacation days. The Union admits that there has been a practice of calculating the vacation days as 43 days and that any estoppel that arises from the practice should tenninate with notice. We note that while the original complaint asserted that there should have been a credit of 4.5 days per month, the Union, at the hearing modified that original calculation and now claims only 4.35 days. The Union also argues that, pursuant to Article 32.10, there was no individual grievance and ~ no one was able to grieve, and accordingly, the Union is not prevented from grieving. The College maintains that there has been a long practice of prorating vacation entitlement based on 4.3 days per month. The College asserts that for the few people who start early or leave early, or who have their employment interrupted, the College has used 4.3 days per month smce 1976. That practice has been open and notorious and the College issued statements annually. The College claims that the Union was aware of its practice and there has been no complaint. r'1 The College submits that the Collective Agreement provides for an annual salary over a ten month period, based on a ten month academic year, and that the ten month academic year is based on 2 15 paid days. There is a two month vacation period which amounts to 43 working days. The College maintains that there are three possible methods of calculation. In the first method, the -~~ I I I 1 I j j I I I 1 , ; ! {\: o 6 College suggests that in any holiday period there are no more than 43 days. The second method involves a calculation based on 365 days and after removing weekends of 104 days and removing the eleven statutory holidays that there are 250 days in an academic year, and when that is divided by 12 it produces (250 + 12 = 20.83 x 2) 4 1.7 days for vacation. The third calculation is based on 215 days and calculates that there are 43 working weeks of seven days for a total of (43 x 7)301 days and if weekends are deducted it leaves (43 x 2) 86 days to be deducted, leaving a total of (301 ,. 86) 215 days. A working year is 215 days for a ten month period, which is the equivalent of 2 1.5 days in a month. Accordingly, the vacation period of two months is equal to (21.5 x 2) 43 days. The College argues that the 215 day calculation has been upheld in numerous cases between this Union and the Colleges. The College further maintains that this matter is not properly a Union grievance within the meaning of Article 32.10 of the Collective Agreement, and relies on a number of cases in connection with that Article. The College also states that the practice of calculating vacation credits has been . open and notorious for so long that if there is any ambiguity, the practice must be considered in order to resolve the ambiguity. The College also maintains that given the well known practice the Union is estopped from claiming that the practice should be different. By way of reply the Union maintains that it is wrong to exclude statutory holidays and that there is no basis for the 215 day fonnula that the College seeks to apply. The Union also maintains that since it has raised an objection to the College's fonnula, the estoppel replied upon by the College must be tenninated. ~ 7 The relevant provisions of the Collective Agreement are as foilows: WORKLOAD 11.03 The academic year shall be ten months in duration and shall, to the extent it be feasible in the several colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round operation and where a College determines the needs of any program otherwise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. 15.01A 1 15.018 15.01C 16.01A ~.. VACATIONS A full-time employee who has completed one full academic years service with the College shall be entitled to a vacation of two months as scheduled by the College. A teacher assigned to teach for an additional month (11 th month) over the normal teaching schedule of the equivalent to ten months as part of a continuous 12 month program shall be entitled toa vacation of one month, as scheduled by the College. Such teacher shall also receive a bonus of ten percent of the employee's annual salary for the additional eleventh month of teaching assignment to be paid on completion of such assignment. A teacher assigned to teach in the eleventh month for less than a full month will be entitled to a pro-rata amount of the ten percent bonus referred to above, to be paid on completion of such assignment. A member of the teaching faculty teaching in a continuous program shall not be required to teach for more -than 12 consecutive months without a scheduled vacation of at least one month. It is understood that the above provisions for vacations are not intended to prohibit Colleges from scheduling non-teaching periods at Christmas and New Year's or at any other mid-term break. HOLIDAYS. An employee will be granted the following holidays on the day on which the holiday occurs or is celebrated by the College without reduction of salary: Good Friday Civic Holiday '. : .," ~ ~ 8 Victoria Day Canada Day labour Day Thanksgiving Day 16.03 An employee will be granted the holiday period of December 25th to January 1st inclusive .without reduction of salary. When a holiday as defined in 16.01A falls within the vacation period of a member of the academic staff teaching an 11 th month as referred to in 15.01, a Counsellor or a Librarian, the employee shall be granted an additional day off at a date designated by the College. When a holiday as defined in 16.01A falls on a Saturday or Sunday, the College shall designate a day in lieu thereof. 16.016 16.02 Union Grievance ~ 32.10 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by- passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local President to the Director of Personnel or as designated by the College, within 20 days following the expiration of the 20 days from the occurrence or origination of the circumstances giving rise to the grievance commencing at Step One of the Grievance procedure. At the outset, we find that we. are in agreement with the line of cases, which over the years, has found that salaries are based on a full-time academic year and that the academic year according to Article 11.03 is " ten months in duration". Also, a reasonable inference may be drawn from o reading both Article IS.0lA and 15.01B together. It is clear that the "nonnal teaching schedule" ~ "'-' .~ o .". .1 ; .. I ',' ~..:. 9 under Article 15.01B is a ten month period, because the parties refer to an "additional month (11 th month) over the nonnal teaching schedule of the equivalent to ten months. . . ." That eleventh month also is to receive 10% of the employee's annual salary. Accordingly, the bonus provision providing for payment for an additional eleventh month based on the annual salary suggests that the usual salary is paid for ten months. In addition, Article IS.OIA provides that employees who have completed "one full academic year's service" are entitled to a vacation period -of two months scheduled by the College which again suggests that the academic year is ten months. That view is consistent with a number of arbitration cases between these parties. See e.g. St.. Clair College of Aoplied Arts and Technology and OPSEU unreported, June 14,1989 (H.D.Brown); Ontario Council of Regents for Colleges of Applied Arts and Ie~hn~lQ.gy in the Fonn of Sir Sanford Fleming and OPSEU (Shosenberg grievances) unreported, May 14, 1997 (R.H. McLaren); OPSEU and The Ontario Council of Regents for Colleges of Atmlied Arts and Technolow' (Conestoga College) unreported, November 26, 1976 (J.D. O'Shea, Q.C.) We now turn to the different calculations presented by the parties. There is some agreement that in making the calculation there must be a reduction to calculating by days. Having made the calculations, we find that neither the Union's position nor the College's position_admits of precise calculation. For example, in order for the College to reach 215 days it assumes that there is a nine week vacation period which is (9 x 7) 63 days. However, if one assumes that the two month vacation period is for July and August (which is not the case in this College) it is apparent that there are only 62 days of vacation. Subtracting one day and then adding one day to the academic year affects the calculation, albeit minimally" While we acknowledge that the calculations are. not ~ I""'., o 10 precise, we prefer the College's calculation because it is based on the academic year which is ten months. Thus an academic year of ten months will yield a vacation of two months. The Union's starting point is a full year. which is not the academic year that is set out in the Collective Agreement, and thus the College's position which is based on the academic year is more realistic. Accordingly, we accept the College's calculation based on 215 days as the preferable one and the one most reflecting the intent of the parties. However, this case need not be decided by looking at imperfect calculations, because on . balance, the College's calculation which is based both on precedent and also on practice is preferable. As to precedent, Arbitrator Burkett, in Confederation Collesze and OPSEU (Spence grievance) Unreported, April 26, 1988, said as follows: 13. The difficulty in interpretation is caused by the co-existing concepts of an "annual salary" and a ten-month academic year. It is trite to observe that in the normal course an employee is paid for the time he or she works. In the normal course an employee who is paid an annual salary is required to work 261 days in the calendar year and, therefore, a day's pay is normally calculated by dividing 261 into the annual salary. However, the employees covered by this collective agreement, although paid an annual salary, are required to work only 215 days during the ten-month academic year. The annual salary provided under this collective agreement, as distinct from most annual salaries, is earned over ten months through 215 days of work. If an . employee was to terminate June 30th after teaching 215 days it could hardly be argued that he/she was not entitled to the full annual salary. Likewise, if an employee's. maternity leave extended into the summer vacation period a deduction from the annual salary could not be made for the penod of the leave extending into the vacation period. Accordingly, in the absence of any suggestion in the collective agreement that the annual salary is to be pro rated over the calendar year (indeed in'the face of language establishing a two-month unpaid vacation which in our view points in the opposite direction)we must conclude that where a teacher is required to work 215 days over a ten-month period he/she earns 11215th of the annual salary for , I .1 c .-',:. r: . . ~ 11 .r--.) each day worked. (For further support see re Dick. v. Deputy Attornev General of Canada, SCC (1980) 112 D.L.R. (3d) 651.) The College, therefore, made the proper deduction from the salary of the grievor in respect to her absence from work on maternity leave. 14. .In coming to this conclusion we have not been persuaded by the provision in section 3(2) of Bill 130 that an amount equal to 1/261 of the salary of a teacher be deducted for each day of the 1984 strike. The legislature may not have put its mind to the unusual and somewhat complicated provisions of articles 3, 4 and 5 of this collective agreement or, if it did, it may nevertheless have decided to lessen the financial burden of the strike upon the teaching masters. Similarly, we have not been persuaded by the policy with respect to the calculation of the sick leave gratuity. It was not disputed that this method of calculation of the sick leave gratuity pre-dates collective bargaining. Finally, we have not been persuaded by the award of Arbitrator Brent in re Centennial Colleae (McCormack grievance) supra. She made her finding not on the basis of a careful analysis. of the collective agreement but rather on the basis of the College's submissions with respect to whether the two-month vacation period was paid or unpaid. In any event her conclusion contradicted the conclusion of Arbitrator O'Shea'in re Conestoqa Colleqe (Membury grievance) supra where it was determined that the annual salary is based on the ten-month academic year and not on the twelve-month calendar year. Pay is earned for time worked and, therefore, under this collective agreement a day's pay is equal to 1/215 of the annual salary. Accordingly, there is a clear finding that the academic year is based on 215 days. That finding is not contradicted by other cases and we are not inClined to find that it is manifestly in error so as to come to a different conclusion. Moveover, as we indicated, on balance,'after considering all ofthe methods of calculation, that the College's calculation based on 2 15 days over ten months is to be preferred. We note also that the annual salary is paid over a twelve month period, and covers teaching "days, statutory holidays and vacation days. In our view, the manner of payment does not affect the 0- calculation and in that regard, we are in agreement with an earlier decision by Arbitrator O'Shea ....1 ..;. j .... . I i - ._' .:. . I .. , ..~. " ,. 12 between this Union and the Colleges. In OPSEU and The Ontario College of Regents forColleaes for Applied Arts and Technology (Conestoga College), unreported, November 26th, 1976, where the arbitrator considered that the payments were made over twelve months and stated, ''while this arrangement has obvious advantages for assisting the employees to regulate their personal budgets, it would also be consistent with the provisions of the Collective Agreement if the annual salary was paid in ten equal instalhnents, or indeed in one lump sum payment." As to the practice, it is clear that since 1976 the College has followed the practice of calculating vacation credits based on 4.3 days per month, which would yield (4.3 x 10) 43 days of vacation credit for the ten month academic year. The College produced evidence of notices to ~ various Union officials over the years which indicates that the practice of 4.3 days per month has existed in an open and notorious fashion for at least ten years, and that senior officials in the Union were aware of that practice. In Re International Association of Machinists. Local 1740 and John Bertram and Sons Co. Ltd. 1968, 18 L.A.C., 362 (p.C. Weiler) the arbitrator stated as follows: n A second use of "past practice" is quite different and occurs even where there is no detrimental reliance. If a provision in an agreement, as applied to a labour relations problem is ambiguous in its requirements, the arbitrator may utilize the conduct of the parties as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct (and, inferentially, this interpretation) be acquiesced in by the other party. If these facts obtain, the . arbitrator is justified in attributing this particular meaning to the' ambiguous provision. The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties. Such a doctrine, while useful, should be quite carefully' employed. Indiscriminate recourse to past practice has been said , . ~ ,"""'i ,~ ; I' .,:. . " 13 to rigidify industrial relations at the plant level, or in the-lower reaches of the grievance process. It does so by forcing higher management or union officials to prohibit (without their clearance) the settling of grievances in a sensible fashion, and a spirit of mutual accommodation, for 'fear of setting precedents which may plague either side in unforeseen ways in future arbitration decisions. A party should not be forced unnecessarily to run the risk of losing by its conduct its opportunity to have a neutral interpretation of the terms of the agreement which it bargained for. Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some responsibility for the meaning of the agreement have acquiesced in the practice. We find that- decision to be relevant to the instant situation. The College has based its interpretation on on~ meaning attributed to the relevant provision that there has been acquiescence in the conduct of the College for a period in excess of twenty years without objection, and members of the Union who' have had some responsibility for the meaning of the agreement have acquiesced in the practice. Moreover, as to Professor Weiler's first test with respect to the prepond~rance of meanmg, if the agreement is ambiguous, then the use of past practice clearly favours the College. However, we have found that both on balance and by precedent the meaning of the agreement also favours the College and thus, whether the agreement is clear or ambiguous, we are compelled to conclude that either the College's calculation is preferable, or alternatively the Union's acceptance of the practice and its acquiescence for such a lengthy period of time clearly indicates that the .. , ~\ .~ '- -"'. 1 r f . ,II i.J "., I DATED AT TORONTO THIS I ~ Ii-- 15 DAY OF JUNE, 1999 e8~ OR SHIME Q.c. CHAIRPERSON "I CONCUR" R. HUBERT NOMINEE FOR THE COLLEGE "I DISSENT' J. McMANUS NOMINEE FOR THE UNION