HomeMy WebLinkAboutUnion 21-09-29In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
GREY COUNTY AMBULANCE (EMS)
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 250
(the “Union”)
Union Grievance re Scheduling
OPSEU File No. 2020-0250-0002
Arbitrator: Randi H. Abramsky
Appearances
For the Employer: Mark H. Mason Counsel
Andrew J. Movrin Co-Counsel
For the Union: Isaac Handley Grievance Officer
Hearing: September 20, 2021 via video conference.
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AWARD
1. At issue is whether the Employer, Grey County Ambulance Services, violated Article 13.13
of the collective agreement when it reassigned a Paramedic to another role due to a co-
worker’s need to leave during the shift, without then backfilling her position. The Employer
asserts that there was no violation of the collective agreement.
Facts
2. The parties proceeded with an Agreed Statement of Fact, supplemented by viva voce
evidence.
3. The Employer provides 24/7 emergency medical services to Grey County, a larg e
geographic area which includes Owen Sound, Grey Highlands, Meaford, West Grey,
Hanover, the Blue Mountains, Chatsworth, Dundalk, Georgian Bluffs and South Gate. It
maintains eight base stations, with nine ambulances and five other vehicles. It employs
135 Paramedic employees: 82 full-time and 53 part-time.
4. The Agreed Statement of Fact is set out below:
A. Background
1. The Employer has two types of assignments for its
Paramedics: (i) Emergency response Paramedics (which
include Ambulance 911, Patient Transfer Units & First
Response Units (or FRU); and (ii) Community Paramedicine
(or CP) Units.
2. Ambulance (911/ Patient Transfer) Units are typical
ambulances that are staffed with two (2) Paramedics. Only
Ambulance Units are capable of transporting patients to
appropriate medical facilities because two (2) Paramedics are
required for patient transport.
3. FRUs are staffed with one (1) Paramedic, which can operate
out of trucks or ambulances. A FRU, as assigned, cannot
perform patient transfers because the Unit is comprised of only
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one (1) Paramedic. Among other responsibilities, one purpose
of the FRU is to provide coverage in areas when the
transporting unit for that area is out on a call.
4. The Employer first introduced FRUs in or around November
2018. For clarity, Paramedics have always been required to
provide First Response, however, the Employer first
introduced FRU assignments in November 2018 whereby
Paramedics solely perform First Response calls, unless
directed otherwise.
5. Community Paramedicine Units are staffed with one (1)
Paramedic, which can operate out of a truck, van or
ambulance. Community Paramedicine Units mostly attend
scheduled appointments in patients’ homes to administer care.
However, these units will respond to 911 or First Response
calls if needed. Community Paramedicine Units, as assigned,
cannot perform patient transfers because the Unit is comprised
of only one (1) Paramedic.
6. The Employer first introduced Community Paramedicine
Units in or around January 2015.
7. With respect to Supervisors performing First Response calls,
the parties acknowledge that supervisors can (and are required
to) assist with First Response calls when they are closest to the
calls.
B. Events on March 16, 2020
8. On March 16, 2020, Paramedic Andre LeFebvre
(“LeFebvre”), was scheduled to work on Ambulance from
7:00 a.m. to 7:00 p.m. out of the Dundalk base (the “Dundalk
Ambulance”).
9. At 1:11 p.m., LeFebvre booked off the remainder of his shift
due to illness.
10. Due to LeFebvre’s sudden absence, the Employer had to fill in
coverage for the Dundalk shift.
11. That same day, Paramedic Lori Morton (“Morton”) was
working the FRU from 9:00 a.m. to 9:00 p.m.
12. The Employer moved Morton to the Dundalk Ambulance for
the remainder of the Dundalk Ambulance shift until 7:00 p.m.
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Morton proceeded to the Dundalk base to cohort with the
Dundalk Ambulance and left her FRU vehicle at the Dundalk
base.
13. The Employer did not offer Morton’s FRU shift to other
Bargaining Unit employees.
14. At 7:00 p.m., the Dundalk Ambulance shift ended and Morton
immediately recommenced her FRU shift.
15. The Employer did not fill Morton’s FRU shift with any other
Paramedic while she worked on the Dundalk Ambulance.
16. While Morton worked on the Dundalk Ambulance shift,
Alternate Rate Supervisor, Rob Bell (“Bell”), continued to
perform his supervisory duties which included answering First
Response calls as they came in or as required by Dispatch. If
Bell was needed for FRU coverage or response then that would
have been provided at the request of dispatch.
17. Bell did not take over Morton’s FRU vehicle. Bell stayed with
his vehicle at all material times.
18. Bell’s supervisory shift was scheduled from 6:30 a.m. to 6:30
p.m., and ended in accordance with that schedule.
19. On April 10, 2020, the Union filed a grievance concerning the
events of March 16, 2020, which states:
The Union grieves under article 13.13 the employer’s
failure to fill a shift in Dundalk on March 16th and use of
the First Response Unit to fill in after a member booked
off during the shift.
The “Settlement Desired” states, in relevant part:
Any time there is an open shift all efforts are made to fill
it using the Part Time call in list, Full Time overtime and
as a last resort the Supervisor can fill in. At no time
should the FRU be downstaffed to fill in for a
transporting unit. …
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5. The parties’ actual dispute, however, centers not on the Employer’s decision to fill the
Dundalk Ambulance spot with Morton, but on the Employer’s failure to then backfill
Morton’s FRU assignment.
6. There is only one Paramedic assigned to the FRU role each day, from 9:00 a.m. to 9:00
p.m., seven days per week.
7. Article 13.13 of the collective agreement provides:
13.13 Bargaining Unit Work
Management may do the work of the bargaining unit in order
to maintain emergency coverage only in extenuating
circumstances. The following process will be followed:
(a) In the event that greater than fifty percent (50%) of the
shift has been completed the supervisor may complete the shift
as a partner on the affected ambulance.
(b) In the event that less than fifty percent (50%) of the shift
has been completed the supervisor will attempt to fill the
remainder of the shift following the guidelines outlined in
Article 13 – Hours of Work.
(c) While attempting to fill the remainder of the shift under
section (b), the supervisor may provide emergency coverage
as a partner on the affected ambulance.
8. It is undisputed that at the time. Lefebvre left work at 1:11 p.m., he had completed more
than 50% of the shift, and that at the time Morton was moved to the Dundalk Ambulance,
she had worked less than 50% of her shift.
9. Chief of Paramedic Services Kevin McNab testified that he viewed the transfer of. Morton
from the FRU role to the Dundalk Ambulance role, to cover for LeFebvre, as a
reassignment within the primary Paramedic position. It was not a “downstaffing”. His goal
was to keep an ambulance, which can do first response and patient transport, in each
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community, and moving the FRU Paramedic achieved that goal in the most efficient
manner possible. He testified that this has been the County’s practice, and that in these
situations, the FRU role is not backfilled.
10. Two prior examples of a FRU Paramedic being moved to fill in for a “book off” during a
shift were introduced, one on October 30, 2019 and one on December 15, 2019. According
to both Mr. McNab and Operations Manager Paramedic Services Jeff Adams, in neither
case was the FRU position backfilled. The documentation which recorded the transfers of
the FRU Paramedic for the two book offs, the Shift Logs, however, does not indicate
whether any attempt was made to backfill the FRU positions. The book off on October 30,
2019 took place at 1:14 p.m. and the one on December 15, 2019 took place at 2:30 p.m.
11. The local Union Vice President and Steward, Brandi Watson, testified that she was
unaware of this practice or these situations. Ms. Watson testified that in a discussion she
had with Mr. Adam’s about the events of March 16th, at a Zoom meeting in late March or
early April, Mr. Adams told her that the County had not tried to backfill for Morton
because it had been unsuccessful in getting anyone to fill in for a position earlier that day.
She did not recall when this discussion took place or have any notes of it. She recalled that
another Steward was on the call, Derrick Stevenson, who was looking for his notes. She
did not recall who else from management was on the call. Mr. Stevenson was not called
as a witness. No notes from the meeting, from anyone, were introduced into evidence.
12. Mr. Adams testified that he had a record of a zoom meeting with the Union on May 7,
2020, but could not recall the content of their discussion. He also had no notes of the call.
He testified, however, that it was not the County’s practice to backfill the FRU role when
the FRU was moved to cover for a book off during the shift. Mr. McNab did not recall
attending the meeting.
13. Mr. McNab further testified that when determining whether to fill a “book off” during the
shift, management evaluates the day and position, and uses the resources at hand. If the
employee who booked off has worked “more than 50%”, they move the FRU to the role.
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If the employee who booked off worked “less than 50%”, they would call someone in. The
goal, he reiterated, is to keep an ambulance in each community. He also noted that calling
in a Paramedic to fill the remainder of the shift would result in the County having to pay
the employee for 18 hours.1
14. There are several other relevant collective agreement provisions that pertain to this case.
Article 4 – Management Rights
4.01. The parties hereto acknowledge that it is the exclusive
right of the Employer, subject to and in accordance with the
terms of this Agreement to:
a) maintain order, discipline and efficiency;
b) hire, direct, classify, transfer, promote, discharge,
suspend or otherwise discipline employees for just and proper
cause;
c) determine in the interest of efficient operation and the
highest standard of service, the hours of work, work
assignment, work schedules and methods of doing work;
d) determine the number of personnel required, in the
services to be performed and the methods, procedures and
equipment to be used in connection therewith;
e) to operate and manage the undertakings of the
Department and without restricting the generality of the
foregoing, to select, install and require the operation of any
equipment, plant and machinery necessary for the efficient and
economical carrying out of the operations and undertakings of
the Department.
Article 13 -Hours of Work
…
1 It was not clear to me why this was required, so I asked counsel to explain, and I was referred to Articles 13.06,
which states that if “an employee is called in for a shift without sufficient notice to arrive for the shift at the regular
start time of that shift the employee will be paid for the entire shift”, and Article 14.01, which s tates that over time
“will be paid on hours worked in excess of the length of an employee’s regular shift as well as hours worked in
excess of the employee’s regular scheduled rotation (1 week, 2 week, 4 week rotation).”
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13.07. Where an open shift exists due to a late notification of
absenteeism the Employer shall canvass available employees
by seniority. The Union agrees that in order to be eligible for
the shift an employee must be able to arrive at the station
within one (1) hour of the start of the shift. In the event an
employee is unable to arrive within the time referred to above
or the Employer is unable to make direct contact with the
employee, the Employer shall move to the next eligible
employee on the seniority list.
Where an employee is already working a shift and must leave
during the shift the remaining hours of the shift shall be filled
at the discretion of the duty supervisor.
Late notification shall be defined as any call-in of absenteeism
of two hours or less.
13.08. The schedule of hours and days of work of each full
time employee shall be posted in an appropriate place at least
four (4) weeks in advance. Once posted, the shift schedule
shall not be changed without the knowledge of the
employee….
The regularly scheduled hours and days of work of each part
time employee shall be posted in an appropriate place at least
4 (four) weeks in advance.
13.09…
Where an open shift exists in the bargaining unit, or a
replacement is needed for a bargaining unit position, the
following procedure shall be followed:
a) The hours shall first be offered to part-time employees, by
seniority, until either the opening is filled, no part-time
employee is available, or all part-time staff have been
scheduled for thirty-six (36) hours or seventy-two hours per bi-
weekly pay period. If a shift has been filled at a certain point
on the seniority list and another shift becomes available the
next day, the next person on the list will be called.
Where an open shift may exist or a replacement is needed for
a shift and the Employer searches more than forty-eight (48)
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hours in advance in order to fill the required shift, the
Employer agrees to allow a ten (10) minute wait period when
contact is made with the employee in order to allow the
employee to confirm acceptance of the shift.
(b) If after step (a) there are still hours to be filled, it shall be
offered to available full-time employees by seniority
(c ) If after (b) there are still hours to be filled, they shall re-
offer to part-time employees as in step one (1) until all part-
time employees have been scheduled to forty-two hours or
eight-four (84) hours per bi-weekly pay period.
13.10. Availability
An Operational Shift is defined as a shift on which the
paramedic is on duty and responding to calls, or has the ability
to respond in uniform, to calls immediately upon notice. …
15. In terms of the role of the Supervisor on March 16, the only evidence provided is found in
the Agreed Statement of Facts. In paragraph 7, the parties “acknowledge that supervisors
can (and are required to) assist with First Response calls when they are closest to the calls.”
In paragraphs 16 and 17, the parties agreed that “Alternate Rate Supervisor, Rob Bell
(“Bell”) continued to perform his supervisory duties which included answering First
Response calls as they came in or as required by dispatch. If Bell was needed for FRU
coverage or response then that would have been provided at the request of dispatch.”
Further, “Bell did not take over Morton’s FRU vehicle. Bell stayed with is vehicle at all
material times.”
16. Based on these facts, the parties dispute whether or not Alternate Rate Supervisor Bell
performed the FRU role on March 16. Alternate Rate Supervisors are members of the
bargaining unit.
Submissions of the Parties
A. Submissions of the Union
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17. The Union alleges that the Employer violated Article 13.13 when it failed to attempt to fill
the remainder of Morton’s shift, since she had completed less than half of her FRU shift at
the time she was reassigned to the Dundalk Ambulance. It contends that the Employer was
required, under Article 13.13(b) to attempt to fill her position as outlined in Article 13.09
– by contacting the part-time employees, by seniority, and if that fails, the full-time
employees, then back to the part-time employees. It submits that Article 13.13(b) uses
mandatory “will” language versus discretionary “may” language, as appears in subsection
(c). The Union relies on Re Alberta Health Services and Health Sciences Association of
Alberta, 2013 CarswellAlta 176 (Jones).
18. The Union asserts that FRU work is bargaining unit work, and the FRU shift became
available because Morton was moved to the Dundalk ambulance when less than half of her
FRU shift had been completed, triggering the requirement under Article 13.13(b) to attempt
to replace her shift through the process outlined in Article 13.09. It notes the importance
of preserving bargaining unit work, citing Re Coca Cola Bottling Ltd. and U.F.C.W., Local
175, 2000 CarswellOnt 5990 (Surdykowski).
19. In response to a question I posed – was her shift an “open shift” or a “replacement” shift
under Article 13.09, counsel for the Union responded that it was “one or the other”, that
there was “no clear answer” to that, and that I need not decide that fact. In response to
another question I posed – did the Supervisor perform bargaining unit work on March 16
– counsel responded, “yes, in effect” although it was “not clear.” In the Union’s view,
either way, the available FRU work had to be offered to other Paramedics since Morton
had worked less than 50% of her shift.
20. The Union also relies on the basic principles of contract interpretation – that the words of
a collective agreement must be given their “plain and ordinary meaning”, that the specific
(Article 13.03) prevails over the general (Article 4, Management Rights); that the parties
are presumed to say what they mean and mean what they say; and that clear wording in a
collective agreement trumps everything except statutory rights. The Union relies on the
following cases: Re CEPU of Canada Local 777 and Imperial Oil Strathcona Refinery,
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2004 CarswellAlta 1855 (Elliott); OPG and Society of Energy Professionals, 2013
CarswellOnt 17912 (Surdykowski); Re Horizon Plastics International Inc. and
U.F.C.W.Canada, Local 175, 2017 CarswellOn5 10000 (Parmar); AUPE and Alberta
Health Services, 2017 CarswellAlta 1750 (McFetridge); Re Athabasca Catering Ltd.
Partnership and U.S.W., Local 8914, 2019 CarswellSask 710 (Norman); and, Re Stepan
Canada Inc. and Unifor, Local 17-0, 2014 CarswellOnt 2448 (Anderson).
B. Submissions of the Employer
21. The Employer asserts that there has been no violation of the collective agreement, and that
it acted within its management rights to assign Morton, a primary Paramedic, to the
Dundalk Ambulance without having to then fill her FRU assignment. The Employer notes
that the Union is not challenging its right to assign Morton to the Dundalk Ambulance but
instead submits that the Employer must either leave her in the FRU role or replace her if
she is moved. It contends that what occurred was a work reassignment of a Paramedic
from one role (FRU) to another (Ambulance); she was not taken “off shift”, nor was her
shift changed. She immediately resumed her FRU role and hours when the ambulance shift
was concluded. In its view, this was a reallocation of resources to maintain the optimal
emergency coverage after a Paramedic had to leave during the shift. It was not an “open”
or “available” shift. It submits that there is no guarantee of a specific “assignment” within
a shift.
22. In the Employer’s view, Article 13.13 is not applicable since Supervisor Bell did not
perform the FRU role. He continued to perform his own supervisory role, in his own
vehicle, which includes answering first response calls. It argues that there is no evidence
that the Supervisor filled in for her, or that he attended an emergency in place of Morton.
Article 13.13, in its view, determines when management may perform bargaining unit
work. Since no bargaining unit work was performed by management, it submits that
Article 13.13 did not apply and was not violated, as the Union claims.
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23. The Employer further argues that its reassignment of Morton did not create an “open shift”
within the meaning of Article 13. It contends that the words “open shift” have a specific
meaning under Article 13.07 – a shift which due to a late notification becomes available
before the shift starts. It notes that same Article also deals with the situation of “[w]here an
employee is already working a shift and must leave during the shift”. In that case, “the
remaining hours of the shift shall be filled at the discretion of the duty supervisor.”. In its
view, this means that the Employer may decide if and how to fill the remaining hours of
the shift. In this case, the Employer decided to fill the remaining hours of LeFebve’s shift
by reassigning Morton to the Dundalk ambulance.
24. The Employer also relies on the basic principles of contract interpretation. It cites to Re
Aluma-Systems Inc. and L.I.U.N.A., Local 506, 2014 CarswellOnt 15957 (Nyman); Re City
of Mississauga and CUPE, Local 66.01, 2021 CarswellOnt 5978 (Abramsky); and, Re
Mobile Climate Control and U.F.C.W., Local l175, 2011 CarswellOnt 7231 (Trachuk).
Reasons for Decision
25. This dispute involves the interpretation of the parties’ collective agreement – not just
Article 13.13, but Article 13 and the collective agreement as a whole. The generally
accepted principles of contract interpretation are not disputed by the parties, but they assert
that those principles lead to different conclusions.
26. Having considered the evidence and the submissions of the parties, including the cited
arbitral jurisprudence, I am not persuaded, on the balance of probabilities, that the
Employer’s actions violated the collective agreement.
27. There can be no question that under Article 4, Management Rights, the Employer retains
the authority to “[d]etermine in the interest of efficient operation and the highest standards
of service…work assignment[s]…” This right is “subject to and [must be] in accordance
with the terms of this Agreement…”. So the question is whether Article 13, and more
specifically Article 13.13, limits or otherwise proscribes the Employer’s actions that are
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contested in this case – namely, its ability to reassign Morton from the FRU assignment to
the Dundalk Ambulance assignment without backfilling the rest of her FRU shift.
28. Under the facts, it appears that the FRU assignment and the ambulance assignment are
equally part of the responsibilities of a primary Paramedic. There is no separate
classification of FRU Paramedic or Ambulance Paramedic. There is one classification
doing a variety of tasks, all of which constitute bargaining unit work. Consequently, the
Employer’s reassignment of Morton from her FRU role to Ambulance role was just that, a
reassignment.
29. When LeFebvre left at 1:11 p.m. during the shift, that triggered Article 13.07: “Where an
employee is already working on a shift and must leave during the shift the remaining hours
of the shift shall be filled at the discretion of the duty supervisor.” Management then
determined, based on the fact that LeFebvre was on an ambulance assignment and that he
had worked more than 50% of his shift, that the remaining hours of his shift should be
filled, and determined that they should be filled by Morton, who was working the FRU
assignment that day. That was clearly a reasonable decision, given the greater flexibility
that a two Paramedic ambulance service can provide. It allows the County to provide both
first response treatment and patient transport, if required, rather than have two first
response units available, neither of which could transport patients. The Union does not
contest this reassignment.
30. Instead, it asserts that the reassignment of Morton created an “open shift” on the FRU shift
she had been working, which had to be filled under Article 13.13(b) since she had not
worked more than 50% of her shift at the time of her reassignment. Alternatively, based on
my question, counsel asserted that it could also be a “replacement” shift under Article
13.09.
31. In my view, it is not an “open shift” as that term is used under Article 13. It is clear, from
Articles 13.07 and 13.09, that the words “open shift” refer to a shift that becomes open and
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available prior to the start of the shift. The provisions then set out a mechanism for how
that shift is to be filled – before the shift begins (or within an hour of the shift starting).
32. Nor in my view is Morton’s FRU work a situation in which “a replacement is needed for a
bargaining unit position.” The words “a replacement is needed for a bargaining unit
position” implies that there will be situations in which a replacement is NOT needed. In
this case, it appears clear that management determined that Morton’s FRU role did not need
to be replaced – that it had sufficient first response coverage from. Bell, other ambulance
units and Community Paramedicine units, all of whom are required to respond to 911 or
First Response calls if needed. That is a determination that is permissible under the parties’
Management Rights clause.
33. I am also not persuaded, on the evidence, that Bell, the Alternate Rate Supervisor,
performed the FRU role that day. Putting aside the fact that he is a member of the
bargaining unit, and therefore not “management”, the evidence fails to establish that he
actively performed the FRU role. There appears to be some significant overlap in regard to
first response duties. The Agreed Statement of Facts, at para. 16 states that Bell “continued
to perform his supervisory duties which include answering First Response calls as they
came in or as required by dispatch.” Similarly, in para. 7, the parties’ “acknowledge that
supervisors can (and are required to) assist with First Response calls when they are closest
to the calls.”
34. It appears he played more of a “back up” role since “[i]f Bell was needed for FRU coverage
or response then that would have been provided at the request of dispatch.” In my view,
under the facts here, a “back up” type role does not violate Article 13.13. It is clear that
Article 13.13 predates the introduction of FRU assignments, so it does not, by its terms,
deal specifically with the FRU role. But what it does address is when management may
perform bargaining unit work, completing the shift “as a partner on the affected
ambulance” or provide “emergency coverage as a partner on the affected ambulance.”
These words indicate an active assumption of bargaining unit work, which did not occur
here.
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35. What is interesting is that Chief McNab utilized the 50% standard set out in Article 13.13
to determine whether or not to fill a “book off” during a shift. If the employee left a shift
having worked less than 50% of the shift, he would fill the shift by bringing someone in
(at least for an ambulance Paramedic); if the employee had worked more than 50% of the
shift, he would reassign a FRU Paramedic. The Chief’s use of the 50% standard set out in
Article 13.13 to inform his discretion under Article 13.07 (“Where an employee is already
working a shift and must leave during the shift the remaining hours of the shift shall be
filled at the discretion of the duty supervisor”) does not mean that Article 13.13 applies in
that situation. Article 13.13 is a provision which authorizes management to perform
bargaining unit work “in order to maintain emergency coverage only in extenuating
circumstances.” Since management did not perform bargaining unit work in this case,
there was no violation of this provision.
36. Article 13.13(b) is not a free-standing requirement that the Employer must, in all
circumstances, attempt to fill, through the process set out in Article 13.09, the remainder
of a shift in the event that less than fifty percent (50%) of the shift has been completed. To
interpret it in that way would ignore the purpose of Article 13 (to determine when
management may perform bargaining unit work) as well as negate and undermine other
sections in Article 13 – specifically Article 13.07 – which gives the Employer the discretion
whether or not to fill the remaining hours of a shift when an employee books off during a
shift, and Article 13.09 - determining whether a “replacement is needed for a bargaining
unit position.” The principles of contract interpretation submitted by both parties precludes
such an interpretation.
37. As noted by Arbitrator Surdykowski in Re OPG and Society of Energy Professionals, supra
at para. 33:
“The task of a rights arbitrator is to determine what the
collective agreement provides or requires, not what [s]he or
one of the parties thinks it should say. … The parties a re
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entitled to no more or less than what the collective agreement
stipulates. …”
Conclusion:
38. Accordingly, for the reasons set out above, I am unable to conclude that the Employer
violated Article 13.13 of the parties’ collective agreement. The grievance is dismissed.
Issued this 29th day of September, 2021.
Randi Abramsky
__________________________
Randi H. Abramsky