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HomeMy WebLinkAboutUNION-1996-27-05 IN THE MATTER OF AN ARBITRATION BETWEEN: The Association of Allied Health Professionals: Ontario (Hereinafter referred to as "the Association") - and - The Renfrew County and District Health Unit (Hereinafter referred to as "the employer") And In the Matter of a Grievance Relating to Article 11.01(a) of the Collective Agreement (Holiday pay) Before: D.H. Kates, Sole Arbitrator Appearing for the Association: Ms. Judith 1. Allen, Counsel Appearing for the Employer: Mr. Lynn Harnden, Counsel Heard at Ottawa, Ontario, on February 5, March 28,1996. ': 1 Decision In this policy grievance dated January 9, 1995, the Association complained that bargaining unit employees were improperly denied the half (1/2) day premium (or half day off with pay) otherwise payable under Article 11.01(a) for "the normal working day" prior to the Christmas ('94) and New Years ('95) holidays. The parties are agreed during their discussion of the facts precipitating this grievance that the conclusions reached with respect to employee entitlements for the half-day prior to Christmas will be applicable to half-day prior to New Year's Day. It is common ground that both Christmas (94) and New Year's (95) Holidays fell on a Sunday, a prescribed rest day. The employer designated December 27,1994, and January 2,1995, as alternative (ie., "recognized") holidays for which affected employees were extended a day off with pay at the regular hourly rate. Except for the one employee, no employee worked the day prior to the recognized holidays. The manner in which the employer designated these days as alternative or substitute holidays was the subject of some controversy which will be discussed later in this award. Suffice it to say, the Association insisted on payment of one-half (1/2) day for "the normal working day" prior to either the actual holiday or the recognized holiday as the case may be. In that regard, the Association acknowledged that those days prior to the holidays, whether actual or recognized, were either a rest day (ie., Saturday) or Boxing Day at which time employees were not scheduled to work. Accordingly, the burden fell upon the Association to persuade me that these days ought to be treated as "normal working days" in accordance with Article 11.01(a) of the collective agreement Alternatively, the Association alleged that the employer in designating the alternative days as the holidays acted unilaterally without its agreement and thereby violated Article 1l.Ol(e) of the collective agreement. In that regard, the parties acknowledged that the collective 2 agreement imposed a mutual obligation to reach agreement on an alternative day as the recognized holiday where the actual holiday falls on a day of rest, ie., a Saturday and/or Sunday. Accordingly, the Association claimed compensation on the assumption that, but for the employer's breach, the recognized holiday may have been designated on an normal working day that would have preceded the recognized holiday. In any event, whether, pursuant to Articles 11.01(a) or 11.01(e), the allegation is made that the employer failed to satisfy its contractual commitments and thereby was obliged to pay its bargaining unit employees the half day's pay for the missed premiums prior to both the Christmas and New Year's holidays. The relevant provisions of the collective agreement read as follows: ARTICLE 11 - RECOGNIZED HOLIDAYS 11.01 (a) The following shall be recognized holidays. Subject to 11.01(f), full-time employees shall receive the day off with pay. Part-time employees shall receive the day off with pay on a prorata basis New Year's Day Good Friday Easter Monday Victoria Day Dominion Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Half day before Christmas if it is a normal working day Christmas Day Boxing Day Half day before New Year's Day if it is a normal working day (e) At times when recognized holidays fall on a weekend, there shall be mutual agreement six (6) months prior to the holiday period on the day that shall be proclaimed as the holiday for the purposes of this agreement. The collective agreement defines a regular work week as the "core hours of work between 8:00 h and 16:30 h, Monday to Friday". The employer insisted that the core work week constituted normal working hours for purposes of Article 11.0l(a). Therefore, it was argued that where the actual and/ or recognized holiday is preceded, as in this case, by either a rest day,ie., Saturday or another holiday (for example, Boxing Day), employees are not entitled to the one- half (1/2) day premium. The purpose of the half-day paid leave is to enable employees to 3 attend to matters associated with this holiday. In other words, a normal working day preceding the actual or recognized holiday must be a regularly scheduled work day in order to merit entitlement to the benefit. In regard to the Association's alternative position, the employer was prepared to acknowledge that a "misunderstanding" may very well have occurred with respect to whether an agreement or a consensus was reached with the Association as to the designation of December 27,1994, and January 2,1995, as the alternatives to the actual Christmas and New Year's Day holidays. In the employer's view, it had in a bona fide manner operated on the assumption that it had complied with Article 11.01(e) and had properly notified, as indicated by a work place posting dated August 10,1994, these alternative days as the recognized holidays. Accordingly, for purposes of these proceedings, even if I were to conclude there occurred a technical violation of Article 11.01(e), the remedy (ie., payment) that was requested was inappropriate in the circumstances to be described. TO: All Employees FROM: Norm Lemke DATE: 10 August 1994 SUBJECT: Observed Days - Christmas and New Year's Day As Christmas and New Year's day will fall on a Sunday, the observed days will be: Monday, December 26th, 1994 Tuesday, December 27th, 1994 Monday, January 2nd, 1995 The half day before Christmas and New Year's day will not apply this year as the day prior is not a working day This consensus arrangement has been established with all bargaining units as required by contract. The Association acknowledged both in its opening statement and through its principal 4 witness, Mr. S. McCulloch, Labour Relations Officer, that the term "normal working day" would in the ordinary course constitute a "qualifier" that would have to be satisfied as a condition precedent to securing entitlement to the one-half day premium prior to a recognized holiday. Or, in more succinct terms, if the day prior to the holiday fell on a rest day or another holiday (when employees would not be scheduled for work), they would not be entitled to the half-day premium. Notwithstanding the foregoing the Association's position throughout this piece suggested that each calendar day prior to the holiday, irrespective of whether employees were scheduled to work constituted a normal working day. To this end extrinsic evidence relating to the parties' negotiating history was adduced in support of that position. The extrinsic evidence was non-controversial. During the course of the parties' negotiations for a first collective agreement, Article 11.01(a) was essentially extrapolated from the employer's collective agreement with the Ontario Nurses' Association (ONA). To all intents and purposes it was anticipated that what was applicable to the ONA bargaining unit would be relevant to the Association's bargaining unit members. The difficulty that arose during the negotiations related to the Association's request for an overtime premium payable outside the "core" hours referred to in Article 10.01(a) of the collective agreement. That is to say, hours worked beyond 8:00 h to 16:30 h, Monday to Friday would attract the premium rate of time and one-half (1 1/2). And had the employer acceded to that request then the Association would be disposed to agree with the employer's position that "core" hours and normal working hours were coincidental for purposes of Article 11.0l(a). It is common ground that under Article 10.02 of the current collective agreement overtime at time and one-half is not payable until "time (is) worked in excess of thirty-five (35) hours per week". The employer refused to accede to the Association's request for payment of the overtime 5 premium because of the dramatic changes that were anticipated with respect to the delivery of home care services to the community. As a result the employer insisted on retaining flexibility with respect to the scheduling of bargaining unit employees (particularly case managers) to harmonize with those changes. As a compromise, the parties agreed to the payment of a premium, yet to be negotiated, for hours worked outside the core hours. And in due course, the employer began scheduling one case manager on weekends on a rotational basis. It would also appear that employees were also scheduled haphazardly during the work week outside the core hours. And, in accordance with the parties' collective agreement a $.70 per hour premium was negotiated and accorded employees whose schedules required them to work outside core hours. The relevant provisions of the collective agreement provide as follows: ARTICLE 10 - HOURS..QE..WORK 10.01 (a) The core hours of work are between 8:00 h and 16:30 h, Monday to Friday. (b) If other shifts are introduced or weekends become part of a schedule or standby is required during the life of this agreement, a shift premium and/or weekend premium and/or standby allowance will be negotiated and if the parties are unable to agree the matter will be arbitrated. 10.02 (a) The hours of work for full time employees shall be 35 hours per week, seven consecutive hours per day, exclusive of a meal period not to exceed 1 hour. 10.03 All time worked in excess of thirty-five (35) hours per week shall be considered as overtime, subject to the following conditions: (a) the employee is authorized by her supervisor to work overtime; time of less than one half (1/2) hour will not be counted. Time of at least one half (1/2) hour will be counted as one (1) hour. The employer indicated through its principal witness, Mr. N. Lemke, Director, Human Resources, that an employee whose work schedule was outside "core" hours (ie., for those who worked on the weekends) he or she was paid the half (1/2) day premium for the scheduled work day prior to the holiday. For example, in these very circumstances Ms. Robin Lowery, Case Manager, was scheduled to work and in fact did work Christmas Day ('94) and the 6 preceding day (ie., Saturday) and was thereby accorded the half day premium. Moreover, Mr. Lemke acknowledged that should an employee be scheduled to work a shift outside core hours during the regular work week and that shift preceded a recognized holiday then the half day premium (or time off) would be accorded to that employee. In other words, the employer's admitted practice demonstrated that for purposes of entitlement to the half day premium for the normal working day before a recognized holiday, an employee did not necessarily have to work core hours. Or, from a different perspective, the employer's practice demonstrated the Association's view that in order to attract the half (1/2) day premium under Article 11.01(a) core hours and a normal working day were not necessarily coincidental. The employer insisted in this regard that the essential feature or condition that attracted the half day premium (or time off work) was the requirement that an employee be scheduled to work a working day before the holiday. The purposive test advanced in its argument suggested that the paid early departure time extended employees prior to a recognized holiday enabled them to attend to travel or other arrangements associated with the Christmas and New Year's holidays. That purpose was not, in the employer's view, applicable to rest days or holidays prior to the recognized holiday when employees are not at work. Insofar as the employer's admitted practice is concerned with respect to extending employees the half (1/2) day premium for the day preceding the statutory holiday where that shift falls outside core hours the employer acknowledged its deviation from its principal position of defining a normal working day as being coextensive with core hours. However, the employer insisted that consistency in its position was nonetheless maintained, having regard to that practice, with its purposive argument of requiring an employee to be at work the day preceding the recognized holiday in order to attract the premium. Evidence was also adduced with respect to the Association's alternative argument relating 7 to the employer's alleged violation of Article 11.01(e). In that regard, the evidence appears to have confirmed that no "agreement" was reached with the Association with respect to the alternative days scheduled in lieu of the actual Christmas and New Year's Day holidays. In the Association's view that circumstance (ie., of no agreement) would not have necessarily been dispositive of its request for payment of the half day premium. That is to say, the Association acknowledged that should the parties have failed to reach agreement after engaging in a bona fide attempt to do so, then the employer would have been obliged having regard to the requirements of The Emplovment Standards Act, to select unilaterally alternative days as the recognized paid holidays. But, from the Association's perspective, what appeared to have been unpardonable was the employer's unilateral designation of the alternative holiday without any effort on its part to engage appropriate officers of the Association in achieving a consensus. For his part, Mr. Lemke expressed the view that he had indeed engaged, the Local Representative, Ms. M. Taylor, in the negotiation of the alternative days as appropriate replacement days for the actual holidays on or about July 1994. However, Mr. Lemke could find no objective confirmation that these conversations took place with Ms. Taylor. Neither his notes nor his date book could support his own assertion. Ms. Taylor in fact denied that any such conversation took place and immediately complained to Ms. McCulloch upon the posting of the notice on August 10, 1994. Between August and January, 1995, nothing was done by way of a grievance to alert the employer to the Association's dissatisfaction. Ms. McCulloch acknowledged that the requirement to negotiate a satisfactory alternative date six months in advance of the actual holiday was "mutual". In that sense the Association made no effort to engage the employer in negotiation of a mutually satisfactory alternative. Nor did the Association upon notification of the employer's unilateral designation of the alternative 8 holidays in August 1994 grieve those actions. That is not to say, Ms. McCulloch did not protest the employer's actions by way of the anticipated process contemplated by the collective agreement. In November 1994, her written concerns appeared to dwell upon the employer's reluctance to engage the appropriate Association officials in the negotiation process (ie., Ms. McCulloch) rather than the propriety of the actual dates selected for the substitute holidays. In answer to counsel's questions Ms. McCulloch appeared to agree with the notion that the Association was more concerned about the process than any substantive objection relating to the days selected as the alternative holidays. Indeed, Ms. McCulloch admitted that the Association had no position on what exactly the substitute days ought to have been. The time limits for presenting a grievance relating to an alleged violation of the collective agreement reads as follows: ARTICLE 6 - GRIEVANCE PROCEDURES 6.01 It is the mutual desire of the Parties hereto that complaints or grievances of employees shall be adjusted as quickly as possible. It is understood that an employee has no grievance until the matter has been referred to the employee's immediate supervisor and an opportunity given to adjust the complaint. A grievance concerning the interpretation, application, administration or alleged violation of this Agreement may be processed within fourteen (14) calendar days after the circumstances giving rise to the grievance have occurred or ought reasonably to have come to the attention of the party so affected, in the following manner and sequence. The Association's reliance on Article 11.01(e) presupposes that the employer, having regard to counsel's concession that a "misunderstanding" may have occurred with respect to an "agreement" with the Association in the designation of the alternative holidays, violated its obligation to engage appropriate officers of the Association in reaching a consensus. Furthermore, the assumption is also made that had a bona fide effort been made in that regard then another or different date (for example, Friday, December 22,1994) may have been selected as the more appropriate date for the designated holiday. Accordingly, the Association seeks compensation for the half day prior to a notional recognized holiday (presumably Thursday, c 9 December 21, 1994). And, of course, irrespective of the parties' differing interpretations, the notional day preceding the recognized holiday would clearly be viewed as "a normal working day" and would give rise to the benefit. Assuming all of the foregoing to be accurate, I nonetheless concur with the employer's position with respect to the appropriateness of the remedial request (ie., a half-day's compensation for each member of the bargaining unit) with respect to the alleged breach. In summary, on the basis of both the collective agreement and sheer equitable considerations the monetary relief requested by the Association in compensation would not be an appropriate remedial result Firstly, as argued by counsel, the obligation under Article 11.01( e) to negotiate and agree to an alternative day to the actual holiday where that holiday falls on a rest day is a shared or mutual obligation It likely made good business sense for the employer to initiate such negotiations with the Association, given its obligations for reaching a consensus with its other bargaining agents, in its effort to secure its consent to a mutually satisfactory alternative. But however mistaken the employer may have been in selecting the alternative date in perceived violation of its obligation under Article 11.01( e), the Association upon the discovery of the employer's aberration was duty bound to protest with alacrity. The uncontradicted, indeed admitted, evidence shows that Ms. Taylor, the Association's Local Representative, discovered the employer's unilateral act upon the posting of the notice on August 10, 1994. In that regard the collective agreement anticipates approximately six (6) months notice of the designated alternative date so that employees presumably can make their holiday arrangements well in advance of the anticipated changes. In other words, the Association had sufficient time to launch a timely protest with a view to negotiating a more appropriate or desirable date. It failed to do so, and in my view it thereby acted at its peril and to the prejudice of its members. 10 The truth of the matter would suggest that the Association, through its area representative, Ms. S. McCulloch, objected more to the employer's failure to deal with Ms. McCulloch directly rather than the local representative in the determination of an appropriate, alternative date for the actual holiday. The Association's objection was to process and not to the days that were selected as the alternatives to the actual holidays. And so, the Association, in my view, cannot be permitted as late as this arbitration hearing to raise a new allegation under the general framework of its grievance statement and thereby secure compensatory relief on the basis of a violation of Article 11.01(e). Article 6.01(a) specifically imposes a fourteen (14) calendar day time limit after the circumstances giving rise to the grievance have occurred or ought to have come to the attention of the party so affected "to initiate a grievance". For like reasons, the Association, in my view, was obliged in the event of any perceived difficulty in engaging the employer in the negotiation of alternative or substitute dates, to file a grievance within fourteen (14) days of the employer's posting on August 10, 1994. Whether the above time limits are directory or mandatory is of no moment to the disposition of my ruling with respect to remedy for the employer's alleged violation of Article 11.01(e). It merely suffices to say that the Association, in being dilatory in advancing its complaint has denied its members any entitlement to compensation with respect to the employer's alleged "technical" breach of Article 11.0l(e) of the collective agreement The Association's principal argument with respect to the employer's alleged violation of Article 11.01(a) is premised on the assumption that a "normal working day" really means and should be treated as any calendar day. In that sense, irrespective of when the holiday falls the employee's entitlement to the half day's compensation becomes payable irrespective of whether the employee is scheduled to work "on the normal working day" preceding the actual or recognized holiday. In other words the terms "calendar day" and "normal working day" are 11 intended to be treated synonymously. In my opinion, there is no merit to the Association's position. Both parties provided me with numerous arbitral precedents that dealt with the difficulty of computing "days" for purposes of determining time limits for the presentation and advancement of a grievance through the grievance procedure. Aside from the proposition that the task of determining whether those days are to be counted on the basis of calendar and/or working days must be gleaned from the overall intent and purposes served by the collective agreement, those cases, in my view, are not helpful in resolving the instant dispute. What appears to me to be of overriding importance in reaching my conclusions are the two admissions made by the Association during the course of the presentation of its extrinsic evidence. The first would suggest that no one party addressed itself to the meaning or implications of the term "normal working day" when Article l1.Ol(a) was extrapolated form the ONA agreement and was incorporated without discussion into the instant collective agreement. And the second admission was made by Ms. McCulloch, when she agreed that the term "normal working day" at the time Article 11.01(a) was adopted as part of the collective agreement was intended to constitute a "qualifier". That is to say, unlike the Association's current position, that term was intended to impose as a restriction or condition precedent that had to be satisfied or overcome to merit entitlement to the premium. Just like the payment of overtime, an employee must work or be deemed to have worked off hour shifts in order to merit entitlement to the premium. It is my view that the "qualifier" contemplated under Article 11.01( a) indicates that the employee claiming the benefit must be working the day prior to the holiday in order to merit entitlement or payment to the premium. In that regard, I recognize that the term "normal" does not always squarely or 12 conveniently fit the "core hours" worked on the working day before the recognized holiday. For example, Ms. Lowery was, in my view, correctly paid the half (1/2) day premium for working the Saturday prior to the Christmas holiday even though that shift fell outside of the "core" hours defined by Article 10.01(a) of the collective agreement. Moreover, the employer acknowledged its obligation to award employees (who work a normal work shift at hours (non core) that attract the $.70 premium) the half day off prior to the recognized holiday. Quite clearly, what may be discerned from all of the foregoing is my own disagreement with the employer's position that "normal working day" before the holiday must necessarily be restricted to core hours in order to merit entitlement to the benefit. In other words, what constitutes the common thread conferring entitlement to the half day premium is the requirement that the employer work on that day. The working day before the holiday may not necessarily be considered a normal working day (as in Ms. Lowery's case) but in my view there is a reason for that anomaly. At no time did the parties, having regard to the extrinsic evidence, address themselves during their negotiations to the inappropriateness and inapplicability of the word "normal" with respect to conferring employee entitlement to the benefit. There clearly would have been an injustice if Ms. Lowery or an employee who otherwise worked a day prior to the holiday were denied the premium because they did not work core hours. Moreover, there was a practical reason as to why the parties refrained from doing so. The extrinsic evidence also demonstrated that at the time Article 1l.01(a) was introduced into the collective agreement bargaining unit employees were not required to work shifts outside of the "core" hours defined under Article 10.01(a). It was only upon the introduction of the changes in scheduling, particularly with respect to the case managers, that weekends were liable to be scheduled. And in this regard, it was demonstrated that the case manager would only work one weekend per annum to service ': 13 the communities' homecare needs. Accordingly, in those isolated or anomalous circumstances where non-core hours are worked a day prior to a recognized holiday, it must be construed as the parties' intention to reward those employees at the half day premium. The alternative interpretation advanced by the Association makes no practical sense. In essence, I am being asked to interpret an employee's anticipated rest day or a recognized holiday, as the case may be, as a normal working day in circumstances where that employee is not even scheduled to work. And the premise upon which the Association's position is advanced rests on the notion, having regard to the employer's reluctance to agree to an overtime premium for hours worked outside core hours, that all hours are susceptible to being scheduled as normal working days. In short, because the employer reserved to itself the flexibility of scheduling employees to non-core hours (on pain of payment of a $.70 premium) all hours thereby were transformed into normal working hours. Accordingly, because of the employer's potential requirement to schedule shifts at any time each calendar day thereby constituted a normal working day. As indicated, that argument removes the "qualifier" that the Association conceded was intended to be imposed as a condition precedent for entitlement to the half day premium. In my view, whether the term "normal" is included or excluded from the phrase "normal working day", it would appear consistent with the Association's own concession that an employee must, as a minimum requirement, be scheduled to work in order to gain entitlement to the premium on the work day before the holiday. Moreover, I have concluded that nothing with respect to the Association's abortive effort to negotiate an overtime premium for time worked outside of core hours should detract from its very own concession with respect to the intended purpose of the "qualifier". In summary, I have concluded, having regard to the purpose served by Article l1.01(a), 14 that an employee must be working on the day before the actual or recognized holiday in order to be entitled to the half day premium. In the result, the term "normal" has no applicability or relevance to that employee's entitlements provided he or she is working on that day. For all the foregoing reasons the grievance is denied. ~ -'\ ,\ 1/" : '\r ' , , , 1\\ Dated thif' \ day of May 1996. ..----- (l II fir- N cr\ , ! i l / '."-' David H. Kates