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HomeMy WebLinkAboutUNION-1994-11-04 IN THE MATTER OF AN ARBITRATION ~ '-',"". \ r;\C? (~'r?\\.'. i c.l\'\ \ 1,'_ ,I \ I.,~', '...._;;-- .!I;l\ \ \,~ }~;'-''',..).-=.~,.... r; JY:1Q,lh \~;~ '\ ,':;C y.O ,'-''-'' ,\\',\\,,\, l~<:~ ~ ~LV .::.~~=~~:- BETWEEN: The Ottawa Civic Hospital, the employer and The Association of Allied Health Professionals: Ontario the association Association grievance re: retroactive adjustment of supplemental unemployment insurance benefit Board of Arbitration: Thomas M. Eberlee, Chair Dan Pearlman, Employer nominee Joe Herbert, Association nominee Appearinq, for the employer: Lynn Harnden, Counsel Sue Ward, Labour relations officer Dawn Gore, Manager, Compensation Carol McMurtry, Manager, Payroll for the association: Phil Hunt, Counsel Sue McCulloch, Labour relations officer Jane Hunter, Unit representative Christine Maher, Student-at-law Hearing held at Ottawa, Ontario, March 7, 1994 Office of Arbitration File: M/9302271 ~ ;',;,rcvC':..,{...-tJ AWARD The Association of Allied Health Professionals: Ontario filed a grievance against the Ottawa Civic Hospital on June 15, 1992 in the following terms: "The Employer has not adjusted the Supplemental Unemployment Insurance Benefit (SUB) payments to employees to reflect the salaries which were adjusted retroactively." At the hearing in Ottawa on March 7, 1994, the parties submitted to the board an agreed statement of facts: 1. The hospital is a 750 bed tertiary care hospital. 2. The Association is a bargaining agent which represents Physiotherapists, Occupational Therapists, Pharmacists, Dieticians and Recreation Therapists at the Hospital. 3. The Association and the Hospital agreed to introduce a Supplemental Unemployment Benef it Plan (" SUB Plan") for maternity and adoption leave in the Collective Agreement covering the period April 1, 1988 to March 31, 1991 ("Collective Agreement"). 4. The Memorandum of Agreement which determined the terms of the Collective Agreement was signed in early 1989. It provided for introduction of the SUB Plan effective April 1, 1988. 5. The Collective Agreement was renewed with the amend- ments contained in the Memorandum of Agreement signed on May 5, 1992. The Memorandum of Agreement included a provision that issues related to Parental and Pregnancy Leave were outstanding and were to be resolved through interest arbitration if necessary. The remaining terms of the Memorandum of Agreement were implemented including retroactive wage increases. 6. Following May 5, 1992, the Hospital did not recalculate the benefit which had been paid under the SUB Plan to reflect the retroactive wage increases. 7. The Hospital did recalculate percentage-in-lieu payments and vacation pay to reflect the retroactive wage increases. 8. The Hospital has implemented a SUB Plan with respect to other bargaining units (Ontario Nurses' Associa~on, CUPE, Locals 567, 1580 and 1384) with similar contract language. It has not recalculated the level of benefit to reflect retroactive wage increases. (The Association takes the position that this is irrelevant to this proceeding). - 2 - 9. The Association has Collective Agreements with four other Hospitals, with similar contract language governing the SUB Plan benefit. These Hospitals make a retroactive calculation of the level of benefit to reflect retroactive wage increases. (The Hospital takes the position that this is irrelevant to this proceeding). 10. The cost of introducing retroactive calculation of the SUB Plan benefit for the Association members would be approximately $12,000. 11. There are no preliminary objections. The Association also submitted a brief of five documents; the parties agreed in front of the board that this should form part of the evidence. This record indicates that in the collective agreement (April 1, 1988 to March 31, 1991) which preceded the current agreement (April 1, 1991 to March 31, 1993), there was provision in article 20.8 for'a supplemental unemployment benefit (SUB) plan for maternity and adoption leave. The negotiations for the current collective agreement were protracted. Not until May 5, 1992 was a memorandum of agreement signed which disposed of most items in dispute. In this memorandum, the parties resolved to make changes and additions to the previous provision for maternity and adoption leave so as to reflect changes that had been made to the Employment Standards Act and the Unemployment Insurance Act. The memorandum indicates in respect of proposed articles 20.6 and 20.7 of the new collective agreement that provision would be made for "Pregnancy and Parental Leave", rather than the former maternity and adoption leave. The parties did not, however, indicate agreement as to the new provisions. The memorandum simply established the understanding that any issues which the parties were unable to resolve in further discussions would be left until after certain interest arbitration awards affecting other hospitals were issued. Then, if they were still unable to resolve the issue or issues by negotiation, such would be referred to an interest arbitration board for final determination. / The memorandum established the wage increases or, at least, the new pay framework for the employees in the bargaining unit. It provided that all other outstanding issues were to be considered withdrawn and that, "All monetary items for which there are no specific effective dates will be effective the date of signing this agreement", - 3 - which was, as has been indicated earlier, May 5, 1992. The new remuneration rates were made effective April 1, 1991. In the board's opinion, this provision was directed at those matters which were settled by the memorandum of agreement and could not have been intended to establish May 5, 1992 as the effective date for such unresolved matters as pregnancy and parental leave. The parties, indeed, did not treat this as the effective date for the monetary item implicit in the new parental leave provision, article 20.7 of the new collective agreement, most of which they negotiated themselves after the May 5, 1992 memorandum. In article 20.7 (g), they provided for the effective date of SUB pay- ments for parental leave to be July 21, 1992. The new collective agreement which finally emerged toward the end of 199i reflected the contents of the memorandum of agreement, further agreements made by the parties plus an interest arbitration award in respect of three disputed items. Article 20.6 covered the new details of the pregnancy leave and its related SUB plan, while, as has been stated, article 20.7 provided for the new parental leave scheme. However, this grievance has only to do with the pregnancy leave plan and more particularly with the SUB payment formula contained in article 20.6 (g): "(g) Supplemental Unemployment Benefit (SUB) Plan for Preqnancy Leave Effective April 1, 1988, and subject to ,confirmation by the Unemployment Insurance Commission of the appropriateness of the Hospital's Supplemental Benefit (SUB) Plan, an employee who is on pregnancy leave as provided under this agreement and who has applied for and is in receipt of unemployment insurance pregnancy benefits pursuant to Section 18 of the Unemployment Insurance Act, shall be paid a supplemental unemployment benefit. That benefit will be equivalent to the difference between seventy-five per cent (75%) of her regular weekly earnings and the sum of her weekly unemployment insurance benefits and any other earnings. Such payment shall commence following / completion of the two week unemployment insurance waiting period and receipt by the Hospital of the employee's unemployment cheque stub as proof that she is in receipt of unemployment insurance pregnancy benefits, and shall continue while the employee is in receipt of such benefits for a maximum period of fifteen (15) weeks. The employee's regular weekly earnings shall be deter- mined by mUltiplying her regular hourly rate on her last day worked prior to the commencement of the leave times her normal weekly hours." - 4 - The new collective agreement spelled out in Appendix A the rates of remuneration which were to take effect as of April 1, 1991 and on other dates during the term of the agreement. It expresses these rates in hourly and other terms, including full-time annual rates. It can be readily determined from Appendix A what an employee's "regular rate of pay" was intended to be and in fact was on April 1, 1991 and thereafter. It is the Association's position, in essence, that this is the rate that should be applied by the hospital in computing the SUB payment to which an employee who went on pregnancy leave after April 1, 1991 is entitled. Thus, in the view of the Association, the hospital must recalculate employees' pregnancy leave benefits based on that new rate and pay the difference. The hospital's position is, in effect, that while it was clearly obliged under the terms of the memorandum and the collective agreement to make retroactive payments to reflect the wage increases, and did so, nothing requires it to give retroactivity in respect of the SUB payments themselves. Counsel for the hospital asserted that there is no evidence of any intention in the collective agreement to provide for a retroactive revision of the SUB payment or, at the most, the agreement is ambiguous on the point. He asked the board to look at an Association proposal which he said had been advanced earlier in the course of the bargaining between the parties. He suggested it would illuminate the Association's intention respecting retroactivity. Counsel for the Association argued that the introduction of such "extrinsic evidence" was inadmissible under the circumstances in the absence of a patent or latent ambiguity in the collective agreement. A majority of the board members concluded that there was no ambiguity which required the board to accept such evidence and ruled that it would not be accepted. The current collective agreement makes reference in article 24.3 to the issue of retroactivity: "24.3 (a) All employees in the Bargaining Unit as of April 1, 1991, are entitled to retroactivity on the basis of the hourly wage increase times hours paid since April 1, 1991..." Three unreported arbitration awards were referred to the board by counsel for the employer to support the hospital's position: The Carleton Place and District Memorial Hospital and The Association of Allied Health Professionals: Ontario, - 5 - February 19, 1993 (Emrich); St. Mary's Hospital and full- time Clerical Unit and London and District Service Workers' Union, February 16, 1988 (Dunn) and Hoqarth Westmount Hospital and Service Employees' Union, June 20, 1991 (Craven) . In this board's opinion, these awards are readily distinguishable from the instant situation and do not guide the board toward the conclusion the hospital seeks. In the Carleton Place case, for example, the collective agreement provided quite specifically that "retroactivity shall apply to the general wage increase" and not to such other benefits as vacation pay, which was one of the issues in contention. No such specific application of retroactivity can be read into article 24.3 (a) as quoted above. It seems that the article establishes for all employees a general entitlement to "retroactivity" without defining what benefits shall or shall not be improved retroactively and without restricting the feasible application of retroactivity. The article goes on to provide the method for retroactivity to be applied: namely, "on the basis of the hourly wage increase times hours paid..." It does not say that this method shall only be applied to wages paid for hours worked. Where retroactivity does appear to be restricted is in article 24.3 (b) which provides that persons who have left the hospital's employ shall receive only "retroactive pay". The St. Mary's Hospital award is also dissimilar in that the arbitration board found there could be no retroactive improvement of the vacation pay benefit since retroactivity had been confined by the interest arbitration award and by the collective agreement to the wages themselves. Much the same situation prevailed in the Hogarth Westmount Hospital case cited, for the employer. The parties clearly intended that a new and increased "regular hourly rate" of pay would go into effect on April 1, 1991. The hospital confirmed that intention by paying employees the difference between the rate at which they were originally paid and the new rate. An employee who worked on April 1, 1991 and commenced pregnancy leave on April 2, 1991 was subsequently the recipient of a retroactive payment in recognition of the fact that there was a new "regular hourly rate" applying to her hours on that day -- her "last day worked prior to the commencement of the leave." On the one hand, for pay purposes strictly, her regular rate on that last day worked is the new rate, but for SUB purposes her regular rate on that same last day worked is claimed to be the old rate. There is nothing in the collective agreement ~ that can possibly be interpreted as giving warrant to that kind of anomaly. - 6 - Under the terms of the collective agreement, there is only one rate of pay that can reasonably be considered an employee's regular hourly rate as contemplated in the pregnancy leave SUB article (20.6 (g)) of the collective agreement. That is the rate which became effective on April 1, 1991. That is the rate which ought to be used by the hospital to calculate the SUB payment for any pregnancy leave that began after a "last day worked" subsequent to April 1, 1991. Of course, the hospital should not be expected to use this rate to compute a SUB payment for an employee on pregnancy leave whose last day worked was March 31, 1991 or earlier. The regular rate of pay on March 31, 1991 was the rate in the old agreement and that rate governs the size of the SUB payment for such a leave, notwithstanding that much or most of it occurred after the effective date of the new collective agreement. Indeed, the Association made it clear to the board that it was making no such claim. To summarize, the board determines that SUB payments made to employees whose last day of work prior to the commencement of pregnancy leave was April 1, 1991 or subsequently shall be recalculated on the basis of the regular hourly rate that was brought into effect for that last day of work through the current collective agreement. The employer shall pay to these employees forthwith the difference between these recalculations and the SUB payments that were originally made to them. Issued at Ottawa, Ontario, on April 11, 1994. -~ Thomas M. Eberlee, Chair Mr. Pearlman dissents; his dissent is attached Dan Pearlman, Employer Nominee Mr. Herbert concurs Joe Herbert, Association Nominee .. ~ ~,. Dissent of the Hospital Nominee In the Matter of an Arbitration between the ottawa civic Hospital and Association of Allied Health Professionals : ontario - Grievance regarding SUB Top Up with respect, while the award reaches one logical conclusion, I feel there is another and cannot agree with the decision of the majority. I believe the ambiguity of the clause was established during the hearing and the request to submit extrinsic evidence should have then been allowed. I note that the memorandum of agreement specifically states that "all other monetary issues for which there are no specific dates will be effective the signing of this agreement." At the hearing, the association initially took the position that 20.06 and 20.07 were linked. The specific date referenced by the union was April 1, 1988 in article 20.07 - Maternity Leave. The language of 20.06 references July 21, 1992. While an argument was later advanced by the Association regarding these dates, 'they were, in my view, incorporated into the agreement as an effective date for the beginning of operations of the plan(s) and should have been given no other meaning. The language of the memorandum would have then been clear on its face and resulted in the denial of the grievance. from this award.