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HomeMy WebLinkAboutCanning 16-12-09BETWEEN: IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT VEU DEC 2 12016 f of Minii�try of Lahour M n !�tr a�ot Tj( DRS DEC S� c'r--VICES CANADIAN BLOOD SERVICES ("the Employer") ME ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 619 EMPLOYER COUNSEL: Link 156101K09IN&IM ("the Union") GRIEVANCE RE APPOINTMENT LEAVE OPSEU #2015-0619-0008 (Canning) AWARD BARRY STEPHENS LEANNE FISHER, Hicks Morley Hamilton Stewart Storie DAN HALES, Regional Grievance Officer, OPSEU HEARINGS HELD IN SUDBURY ON JULY 8, 2016 Introduction [1] This grievance involves a dispute with respect to the application of Article 17.12 "Appointment Leave" to part-time employees. The union grieves that the employer is improperly pro -rating the benefit in Article 17.12. The employer takes the position that Article 17.12 is subject to Article A1.11 of the collective agreement, which mandates the pro -rating of benefits to part-time employees. [2] The key provisions of the collective agreement are as follows: A1.11 Applicability of Agreement Except as otherwise stated in this agreement, all provisions of this collective agreement shall apply to regular part-time and temporary employees on a pro -rata basis. 17.12 Appointment Leave Each employee will be allowed twenty-five (25) hours per year to attend medical, dental and legal appointments when such appointments cannot be arranged outside of working hours. The Union agrees that due to scheduling, employees shall have to give five (5) days advance notice in writing except under extenuating circumstances, such as for a shorter notice specialist appointment, when requesting time off to attend such appointments. [3] The parties submitted the following agreed statement of facts: reed Statement of Facts Background 1. The Canadian Blood Services [CBS] is a not for profit, charitable organization with the mission of managing the blood supply for Canadians. It is the successor to the Canadian Red Cross Blood Program and the Canadian Blood Agency. CBS operates and has employees in all Canadian Provinces, except for Quebec. 2. Since April 2003, the CBS has operated a National Contact Centre in Sudbury, Ontario ["the NCC'] whose mission is to, through both incoming and outgoing telephone calls and other electronic and digital mediums, encourage eligible donors to donate blood, schedule donation appointments and to handle pre and post donation inquiries from blood donors across the county, excluding Quebec. 3. In July 2006, by decision of the Ontario Labour Relations Board, the Ontario Public Service Employees Union, Local 619 [OPSEU] was certified to represent Full-time, Part-time and Temporary Customer Service Representatives [CSR's] and variou support staff working at the NCC ["the Bargaining Unit"]. 4. There are currently approximately 160 employees in the Bargaining Unit. The vast majority of these are employed in the role of CSR's — who are responsible for encouraging eligible donors to donate blood, recording donor information, responding to donor -related inquiries which are not health-related, and referring health-related inquiries/concerns to RN's. 5. Full-time Employees in the Bargaining Unit ["Full -Time Employees"] work 75 hours every two weeks — the vast majority of these are day shift hours (i.e. from 845am- 445pm Monday to Friday). Part -Time Employees in the Bargaining Unit ["Part -Time Employees"] work between 40-74 hours every two weeks — the vast majority of these hours are evening shift hours — (i.e. between 5pm and midnight).. 6. The current collective agreement between the parties was ratified on August 27, 2015 with effect from April 1, 2014 -March 31, 2018 ["the Collective Agreement"]. Matters in Issue The dispute between the parties concerns the manner in which the Appointment Leave provisions at Article 17.12 of the Collective Agreement apply to Part-time employees, having regard to other provisions in the Collective Agreement including Article A1.11. Article A1.11 and Article 17.12 state as follows: Article A — Interpretation A1.11— Applicability of Agreement Except as otherwise stated in this agreement, all provisions of this collective agreement shall apply to regular part-time and temporary employees on a pro - rata basis. Article 17 — Leave of Absence 17.12 — Appointment leave Each employee will be allowed twenty-five (25) hours per year to attend medical, dental and legal appointments when such appointments cannot be arranged outside working hours. The Union agrees that due to scheduling, employees shall have to give (5) days advance notice in writing except under extenuating circumstances, such as for a shorter notice specialist appointment, when requesting time off to attend such appointments. 9. OPSEU takes the position that Part -Time Employees are entitled to the full allotment of "25 hours per year" to attend medical, dental and legal appointments. The Employer takes the position that Part -Time Employees are entitled to a pro- rated amount of those 25 hours per year. Context in which the Dispute has arisen: 10. Prior to the last round of collective bargaining in 2014/2015, the 25 hours of Appointment Leave (as per Article 17.12) had not been pro -rated for Part -Time Employees or Temporary Employees. 11. At the last round of bargaining, the employer gave written notice to OPSEU that "Pursuant to Article A1.11, Article 17.12 shall be applied on a pro -rata basis for regular Part -Time and Temporary Employees." The parties are in agreement that the Employer's notice constituted an effective end to any possible estoppel. 12. Since the August 27, 2015 ratification of the collective agreement, Part -Time and Temporary Employees' Appointment Leave has been pro -rated, based on their part-time hours of work. 13. On September 10, 2015, OPSEU advanced a policy grievance alleging that the "employer is in violation of Article 4 and Article 17.12 and any other article, policy, legislation that may apply by arbitrarily pro -rating appointment leave for Part -Time employees. 14. Neither party is asserting ambiguity. Both parties rely on the fundamental rules of collective agreement interpretation in support of their respective interpretations. 15. The parties agree that this matter is properly before Arbitrator Barry Stephens. Union Submissions [4] The union argues that, despite Article A1.11, where the parties agree that a benefit is to be pro -rated for part-timers, the collective agreement sets out how that pro -rating is to be applied. There are many provisions in the collective agreement that also would not make any sense if there were a strict application of Article A1.11. Thus, the union pointed to Article 6.14 (severance pay), Article 12.10 (call-back pay), Article 13 (vacation), Article 16.02 (minimum increase on promotion), Article 17.06 (supplemental employment benefits), and Article 19.02 (compassionate leave). 3 [5] The union also argues that, until the most recent round of collective bargaining, Article 17.12 had been applied to all employees equally, regardless of status. Given that the language has not changed, there is no basis upon which the employer can or should change the application of Article 17.12. [6] The union asserts that the language of Article 17.12 is clear and unambiguous, in that it stipulates that "each employee" is allotted 25 hours for appointments. In addition, the directory wording used is "will receive" not 'may'. Moreover, the union pointed out that each employee is to receive the full credit of 25 hours, not "up to 25 hours" or some other form of apportioning. In this regard, the union pointed to Article 19.02, which deals with compassionate leave and stipulates that regular part-time and temporary employees will receive compassionate leave, "...limited to the employee's posted scheduled hours." The union reasoned that the lack of similar language in Article 17.12 strengthens the argument that the parties intended to confer the full benefit on all employees. [7] The union seeks a declaration that the employer must follow the collective agreement and pay each employee the full 25 -hour credit for appointments and that affected employees be made whole with respect to any loses resulting from the employer's violation of the agreement. [8] The union relied on the following authorities: Brown & Beatty Canadian Labour Arbitration 4:2110, 4:2120; North York General Hospital, [2014] 121 C.L.A.S. 18 (Surdykowski); Alberta Health Services, [2013] 113 C.L.A.S. 287 (Jones). Employer Submissions [9] The employer also argued that Article 17.12 is clear and unambiguous, and did not rely upon any extrinsic evidence. [10] The employer reasoned that Article A is the interpretation clause of the collective agreement, which sets out definitions to be used throughout, for example, by stipulating that feminine words shall include the masculine. Article A1.11 establishes the intrepretation rule that unless it is otherwise stated, each provision of the collective agreement is to construed such that benefits are pro -rated for part-time and temporary employees. This language, the employer submitted, requires clear language in order to establish an exception to the general rule set out in Article A1.11. [11] The employer also argued that it is sensible to pro -rate the medical appointment leave because full-time employees work most of the day -time hours, while part-timers tend to work evening hours. The language, furthermore, requires all employees to attempt to arrange such appointments outside of working hours. Part-time employees will more readily be able to schedule such appointments for non -working hours. From this perspective, it does not make sense for part-timers working evening hours to have 5 the same number of hours as full-time employees who are working mostly day -time hours. [12] The employer submitted that the union's case amounted to displacement of the pro -rating by implication, not by express terms. Such a conclusion runs contrary to the jurisprudence in this area and basic rules of collective agreement interpretation. The employer rejected the union's assertion that Article 17.12 did not contain an explicit mention of pro -rating, as do other clauses in the collective agreement. Such an interpretation, the employer reasoned, would render the general rule in Article A1.11 meaningless. In accordance with the management rights clause, the employer reserves the right to pro -rated in the manner it deems appropriate, unless the collective agreement stipulates a method of pro -rating. [13] The employer reasoned that the use of the phrase "each employee" in the Article 17.12 should not be taken to indicate an exception to Article A1.11, since the specific direction to pro -rate part-time benefits should be read to supercede the use of the more general reference to "each." The employer also argued that it is a basic rule of interpretation that there must be a clear expression of intent to confer a financial benefit on an employee. This is particularly the case, given that the union's interpretation would confer a proportionally greater benefit on part-time employees than that provided to full-time employees. R [14] The employer relied on the following authorities: Interior Health Authority, [2014] 117 C.L.A.S. 298 (Gordon); Toronto District School Board (2004), 125 L.A.C. (4th) 122 (Barrett); Snyder, Collective Agreement Arbitration in Canada, Ch.2 Interpretation of the Collective Agreement; Sault College, [2011] Can LII 303 (Bendel); Keller Foundation (2014), 249 L.A.C. (4th) 283 (Wallace). Conclusions and Decision [15] The parties are agreed that the language of the collective agreement is unambiguous, and thus this dispute is a question of contract interpretation. [16] The rule established in Article A1.11 is straight forward. It is a declaration of a joint understanding, and a direction of contractual interpretation, to the effect that "all provisions" of the collective agreement are to apply to regular part-time and temporary employees on a "pro -rata basis." Article 17.12 is one of the provisions of the collective agreement and Article A1.11 should be applied to this provision unless it is "otherwise stated" in the language of Article 17.12. In other words, Article A1.11 must apply to Article 17.12 unless there is language in Article 17.12 that overrides the operation of Article A1.11. [17] The interpretation of Article 17.12 turns on the meaning to be ascribed to the phrase "each employee." I note that "each employee" is used in three other provisions in the collective agreement: Article 3.01 - union dues; Article 21.01(j) - benefit plan booklet; and Article 28.03 - copy of job description. But none of these other uses provides insight into the meaning of the phrase in Article 17.12. [18] However, the use of the phrase "each employee" does appears to me to be stronger than the other identifying phrases that are used elsewhere in the collective agreement, such as "an employee" or "employees." The use of the word "each", given its normal meaning, appears to stipulate that this is a right available to every individual employee in the workplace. The difference is significant. "Each employee" signifies to me an inclusive designation of individuals, while "an employee" or "employees" are more general references to status. It is difficult to escape the conclusion that the plain meaning of the word "each" points to a benefit that is meant for every employee. [19] At first blush, the decision in Interior Health Authority would seem to run counter to such a conclusion. In that case, there was a dispute about whether part-time employees had the right to the same number of vacation days as full-time employees. The collective agreement included clear language that pro -rated vacation pay. But the employer had for some time permitted part-time employees to take the same number of vacation days off as full-time employees. The employer sought to change that practice, as is the case in the instant dispute, by invoking the provision in the collective agreement that stipulated that employees were entitled to benefits "on a pro -rata basis." The vacation time provision in the collective agreement simply stated that "all employees" were to be credited with a specific number of vacation days. The phrase "all employees" is similar in its import to the phrase "each employee", and the other 91 similarities in the facts makes Interior Health Authority a case that appears to be parallel to that before me. [20] However, I am not persuaded to the same conclusion as in Interior Health Authority because there is a significant difference between that case and the one before me. The arbitrator in Interior Health Authority concluded that it would not be reasonable to find that the parties had intended that part-time employees should receive the same number of days as full-time employees. She stated that such a conclusion would be "an anomaly" and was "less obvious", even stating that she could not find for the union in the absence of "unequivocal extrinsic evidence", i.e. bargaining history, to support such an interpretation. While I might not have reached the same conclusion regarding the perceived anomaly, the arbitrator's conclusion on this point was clearly central to the decision, and her strong statements about the quality of the evidence required appears to flow from this conclusion. [21] 1 do not have the same perspective on the language in this case. The employer argued that part-time employees tend to work evening shifts, and this created an imbalance or a greater benefit for part-time employees. But, as the union observed, the language of Article 17.12 does not permit such an imbalance to develop, given that employees are required to schedule all appointments during non -working hours whenever possible. A part-time employee who failed in this obligation would be abusing the right in Article 17.12. In addition, an individual employee's schedule is not the only factor that determines the degree to which an employee might be required to 01 invoke time off for medical appointments. For example, a part-time employee with a serious medical condition or one seeing a particularly busy specialist might need more time off than a full-time employee with no ongoing medical issues. Given these considerations, I would not conclude that the outcome suggested by the union is any less obvious than that suggested by the employer. [22] As set out above, it is my view that the language in Article 17.12 acts to oust the application of Article A1.11. While I agree it requires clear language to exclude the operation of the pro -rata rule, I would have to look beyond the plain meaning of the word "each" in order to find that the right in Article 17.12 is superceded by the pro- rating rule in Article A1.11. Thus, the use of the reference to "each employee" in Article 17.12 is sufficient, in my view, to countermand the interpretation direction found in Article A1.11. [23] For the reasons set out above, the grievance is upheld. I refer the matter back to the parties so that they may have an opportunity to resolve any remedial issues. I remain seized of such issues and any other matter arising with respect to the implementation of this decision. Barr ephens, Arbitrator December 09, 2016 10