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HomeMy WebLinkAboutUnion 22-01-17IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION -AND- KENORA CATHOLIC DISTRICT SCHOOL BOARD GRIEVANCE NOS. 2020-0742-0001 AND 2020-0742-0002 AWARD Arbitrator: Laura Trachuk For Ontario Public Service Employees Union: Christopher Bryden Mark Campaner Jennifer Pencoff Angela Harasemchuk Bryna Casavant Matt Richards For Kenora Catholic District School Board: John Jakub Tina Sinclair Alison Smith The arbitration of this matter took by videoconference on March 1, April 1, 9, August 31, September 3 and November 5, 2021. 2 AWARD The Ontario Public Service Employees Union (the “Union”) has filed two grievances alleging that the Kenora Catholic District School Board (the “Board”) violated the collective agreement by failing to pay its members working as Education Assistants (EAs) and Early Childhood Educators (ECEs) the full amount to which they are entitled under the collective agreement. Grievance no. 2020-0742-002 is a group grievance and grievance no. 2020-0742-0001 is a policy grievance. The EAs and ECEs work 10 months of the year. The issue in dispute is whether they are entitled to be paid the full amount set out in the Salary Appendix of the collective agreement over those 10 months or whether that is a 12 month salary and they are only entitled to be paid a pro-rated amount of it. FACTS The Union was certified to represent this bargaining unit of ECEs, EAs, Long Term Occasional ECEs (LTOs), casual ECEs and EAs, and Lunch Hour Monitors on June 22, 2018. There are approximately 50 permanent EAs and ECEs working for the Board and 15 to 20 Long Term Occasional Teachers including “Jordan’s Principle” EAs, in the bargaining unit. The parties negotiated a first collective agreement with an effective date from ratification to August 31, 2019. The agreement was only about two months long because it had to terminate at the same time as the other collective agreements in the province pursuant to the School Boards Collective Bargaining Act (SBCBA). The parties agreed to include the existing wage grid in the collective agreement and also agreed to a wage increase of 0.5 percent on August 31, 2019 which was consistent with what had been centrally bargained for the other school boards. The Board applied that increase to the salary that the members of the bargaining unit had been making previously. The Board sets its salaries as “annualized” amounts and the EAs and ECEs had always only been paid a pro-rated amount of that 12 month salary for the 10 months (194 days) that they worked. The Board sends Records of Employment to Employment and Social Development Canada for the Christmas holiday, March break and the summer break so the employees can receive Employment Insurance (EI) benefits. Most of the members of the bargaining unit are paid a percentage in lieu of vacation. However, at the time of bargaining there were three employees who were working for 10 months and receiving an 11th month of paid vacation so they were effectively 11 month, not 10 month, employees. Prior to certification, the EAs and ECEs were covered by the Kenora Catholic District School Board Personnel and Staff Relations Procedures, Support Staff (the “Support Staff Procedure”). The Support Staff Procedure applied to employees with different work years. Some employees covered by the Procedure worked 12 months and some worked less, including the EAs and ECEs who worked 10 months. The Procedure set out the terms of employment for non-bargaining unit employees including hours of work, holidays, salaries and benefits etc. It provides, in part: 3 2. SUPPORT STAFF SALARIES AND WAGES AND ALLOWANCES 2.1 Support staff salary schedule shall be as approved by the Director from time to time. 2.2 Permanent employees will be paid on an annual salary basis. Payday will be every second Friday and will include salary up to and including the payday. The Support Staff Procedure includes additional allowances for extra education and course work. It provides that employees hired on less than a full year basis on or after August 1, 1999, will receive vacation pay but not paid vacation. The Procedure also provides for a dispute resolution process. The Support Staff Procedure includes a salary grid at Appendix A. As of February 1, 2019, the highest rate (Step 3) for an EA was $43,955.95 and the highest rate (Step 4) for an ECE was $51,109.79. Those are the same rates set out in the collective agreement. The grievances were filed on February 6, 2020. The group grievance states: I grieve that the employer has failed to pay the negotiated salary in the Collective Agreement, this violated any article of the Collective Agreement that applies, and any other legislation that may apply. The remedy requested was: Full redress including the following remedies: - The Employer adjust and pay the negotiated wage rate to the Employees - The Employer adjust and pay the negotiated wage rate to the Employees with retro-activity - Any other remedy that an arbitrator deems appropriate The policy grievance states: The Union grieves that the employer has failed to pay the negotiated salary in the Collective Agreement, this violates any article of the Collective Agreement that applies, and any other legislation that may apply. The remedy requested was: Full redress including the following remedies: - The Employer adjust and pay the negotiated wage rate to the Employees - Any other remedy that an arbitrator deems appropriate Collective Bargaining The school boards in the province and the unions representing employees of the boards engage in central collective bargaining pursuant to the SBCBA. These parties were negotiating for a first collective agreement in the context of that legislation and the central agreement that had been negotiated between the Ontario Public School Boards 4 Association, the Ontario Catholic School Trustee Association, the Council of Trustees’ Association, the Ontario Council of Educational Workers and the Crown. Prior to negotiating that central collective agreement those parties had agreed to a “Memorandum of Settlement for the Scope of Central Bargaining Table for Negotiations in Accordance with the School Boards Collective Bargaining Act, 2014”. That Memorandum provided that the following matters (among others) were to be included within the scope of central bargaining: 1. Salary 2. Wages, including grids 3. Wage grid movement 4. Wage adjustments The same parties reached an Extension Agreement dated January 31, 2017 with an effective date of September 1, 2017 to August 31, 2019. It included a compensation provision that stated: 5. COMPENSATION School boards shall adjust their current salary grids, wage schedules and position of responsibility allowances only, in accordance with the following schedule: … • February 1, 2019 • 1% • August 31, 2019 • 0.5% The Union submitted a request for information with its Notice to Bargain. One of the documents the Board provided in response was a list of bargaining unit members, their step on the grid, whether they are a 10 month or 11 month employee, an effective date, and their salary. Their salaries differed depending on their step on the grid and the allowances they receive. The top of the salary column said “Annual Salary”. The Board also provided the wage grid from the Support Staff Procedure as the current wages during collective bargaining. In bargaining on April 24, 2019 the parties agreed to include the existing (Support Staff Procedure) wage grid in the collective agreement. The Board proposed the following language referencing the Extension Agreement and the Union agreed on April 29: Schedule A – Compensation Employer can agree as amended – grid to be included General Wage Increase – August 31st, 2019 – 0.5% as per the extension agreement dated January 31st, 2017. 5 The agreed items on May 22, 2019 included the Schedule A that was included in the collective agreement including the words “General Wage Increase – August 31st, 2019 – 0.5% as per the extension agreement dated January 31st, 2017.” The Union was represented by Jennifer Pencoff, Angela Harasemchuk and Anastasio Zafiriadis in collective bargaining. Mr. Zafiriadis was a Senior Negotiator with OPSEU during the negotiations in 2019. He explained that this local was certified while the central agreement was ending and that he needed to get a first collective agreement before August 2019 so that it would be included in the council that would be going into central negotiations. Mr. Zafiriadis testified that he reviewed the Support Staff Procedure provided by the Board. He said that he understood that the wage grid set out there was the amount members were paid over the school year. Mr. Zafiriadis advised that he did not see anything that indicated it was paid out over 12 months. He also testified that the Board never informed him that the salaries on the grid were for 12 months. Mr. Zafiriadis acknowledged that he never confirmed that the amounts represented 10 months of employment. Mr. Zafiriadis testified that he would not have agreed to the salary grid if he knew that was not what the members were being paid because the salary grid has to reflect what people are actually making. He said that the members need to know what they are being paid. Mr. Zafiriadis testified that he used the Support Staff Procedure as a base because the Union wanted to maintain what employees already had and to improve on some of them. He advised that he shared the Support Staff Procedure with the team and that they were already aware of it. Mr. Zafiriadis testified that the focus in bargaining was to get the same wage increase as had been agreed to in central bargaining. He said that he confirmed that the Board had already been paying the centrally negotiated increases and he wanted to confirm that it would pay the increase scheduled for August 31. Mr. Zafiriadis explained that the parties had no ability to bargain any additional wage increases. Mr. Zafiriadis prepared an Excel spreadsheet that included salary grids for the EAs and ECEs from September 1, 2018 to August 31, 2019. It included some salary calculations he was making. He testified that he thought he might have been trying to calculate the allowances. Jennifer Pencoff has been the President of Local 742 since it was certified in 2018. She was hired on September 23, 2010 and her offer letter included the following: The Kenora Catholic District School Board is pleased to appoint you to a 0.6 permanent Education Assistant position at Pope John Paul II School effective September 27, 2010. This is a ten month position. The annualized salary for this 0.6 position is $20,574.17 plus 4% vacation paid bi-weekly…. 6 Ms. Pencoff testified that when she read in the September 23, 2010 that her salary was “annualized” she understood it to mean that that was the amount she would receive over the ten month school year that she worked. On July 6, 2011 Ms. Pencoff received another 0.4 EA position making her a full-time 1.0 EA. The letter said that it was a ten month position. No salary information was included. She testified that when she received that letter she understood that she would be paid the salary set out in the salary grid in the Support Staff Procedure and that she would start at Step 1. Ms. Pencoff testified that she looked at the salaries in the Support Staff Procedure when the Board provided it during bargaining. She said that she understood the salaries on the grid to represent the salary that EAs and ECEs were paid from September to June. Ms. Pencoff testified that the bargaining team discussed the Board’s wage disclosure among themselves and agreed that the numbers represented what they would make for the school year. She said that they did not discuss it with the Board because they could not negotiate wages. Angela Harasemchuk also testified for the Union. She is an EA who has worked for the Board since 2012. She received a permanent position in 2013. Ms. Harasemchuk is the Chief Steward and was part of the Union’s bargaining team. I have decided to summarize Ms. Pencoff’s and Ms. Harasemchuk’s evidence as the details ultimately do not matter very much given my determination about the limitation on the parties’ ability to negotiate wages. The T4s and final annual pay slips that Ms. Pencoff and Ms. Harasemchuk received prior to certification indicated that they were paid considerably less than the salaries listed in the Support Staff Procedure. They testified that they never really noticed on their T4s or pay slips that they were being paid less than the salary listed on their hiring letters and in the Support Staff Procedure. Ms. Pencoff and Ms. Harasemchuk advised that they do not remember getting pay equity letters setting out an hourly rate. They also testified that they knew that they could not negotiate wages beyond the 0.5 percent. They agreed that there was no discussion about the wage grid at the bargaining table. Ms. Pencoff and Ms. Harasemchuk also testified that they understood that the wage grid that the parties agreed to take from the Support Staff Procedure and place in the collective agreement reflected what they would make over the 10 months that they worked. They said that they did not know that they received a pro-rated amount until another employee raised the issue at the end of 2019. Tina Sinclair was the Acting Manager of Human Resources and testified for the Board. She participated in collective agreement negotiations. Ms. Sinclair testified that there was no conversation about salaries during bargaining because that could not be discussed in local negotiations. She said that the Union did not ask any questions about the wage grid. Ms. Sinclair testified that the Board conveyed to the Union at the bargaining table that they could not discuss wages beyond the 0.5 percent negotiated in the central agreement. She said that was why the Board added the words “per the extension agreement” to Schedule A. Ms. Sinclair explained that the list of employees and salaries provided to the Union came directly from payroll after receiving a request with the Union’s notice to bargain. She 7 advised that the column titled “Annual Salary” should have been titled “Annualized Salary”. Ms. Sinclair acknowledged that the information provided to employees about what they will be paid for the 10 months they work could be confusing. She also agreed that the document with the employee names and salaries that the Employer produced prior to bargaining could have been confusing but said that the Union had lots of opportunities to ask for clarification. Ms. Sinclair testified that the salary grid in the Support Staff Procedure represents what an EA or ECE would make annualized over 12 months. She confirmed that different positions covered by the Support Staff Procedure work different numbers of months. Some employees work 10 months per year and others work 12. Ms. Sinclair testified that permanent employees are paid bi-weekly by taking their salary and dividing it by 26. They are then paid for the pay periods that they work. For EAs and ECEs that is 22 pay periods or 194 days plus 10 statutory holidays. They are paid for the statutory holidays that take place in the summer as well. They also receive pay in lieu of vacation. Ms. Sinclair advised that LTOs and casual employees submit time sheets and are paid on an hourly basis. She explained that the hourly rate paid to LTOs is established by taking the annualized salary for their step on the grid and dividing it by 1820. Ms. Sinclair also testified that the casual rate is the start rate divided by 1820 hours. 1820 represents 12 months at 7 hours per day and, thus, 1820 hours is the number of hours an EA or ECE would work if they worked 12 months. Ms. Sinclair testified that no employee ever raised the issue of the annualized salary under the Dispute Resolution Process in the Support Staff Procedure nor had anyone ever come to her with questions about the wage grid. Ms. Sinclair testified that an hourly rate was used for comparison purposes when they did a pay equity review in 2013. She explained that that was necessary because custodians, for example, work eight hours per day and 12 months per year and EAs and ECEs work seven hours per day and 10 months per year. The hourly rate for EAs and ECEs was reached by dividing the salary by 1820. She identified letters sent to Ms. Pencoff and Ms. Harasemchuk in 2013 setting out the hourly rate for their positions. They could not recall ever receiving those letters. Alison Smith is the Superintendent of Business Services and testified for the Board. Ms. Smith represented support staff in the Board offices on the Support Staff Liaison Committee before she was promoted to a management position. Ms. Smith explained that an annualized salary is what an employee would earn if they worked a full 12 months so an employee who works less earns a fraction of that. She said that salaries at the Board have always been calculated that way. Ms. Smith opined that everyone knows that what they earn is not what is on the grid because they are not 12 month employees. She said that she received questions from employees about other things on their pay slips but never about why they are not being paid as much as the grid. Ms. Smith testified that if the Union were successful in the grievance it would cost the Board more than $7,000 per EA and ECE each year. She explained that 90 percent of 8 the EAs are funded through the Special Education envelope which is already overspent and that they could not support the increase. Ms. Smith reviewed the Excel spread sheet that Mr. Zafiriadis had prepared for his team for negotiations. She testified that the grid was copied directly from the Support Staff Procedure. However she noted that it also indicated that a number of calculations had been done using different formulae. Ms. Smith advised that the Excel user had verified the numbers set out in the Board’s grid for February 1, 2019 and had calculated what the numbers would be when the 0.5 percent was added to the grid. Ms. Smith then testified that another calculation had been done. According to Ms. Smith, the Excel user calculated what the salary would be divided by 52 weeks. They also calculated the salary over 26 pay periods. However, then a calculation was done for 22 pay periods. Ms. Smith testified that typically an EA or an ECE would be paid for 22 out of 26 pay periods in a year. The Excel user also calculated what they would make on a weekly basis and over 42 weeks which is what EAs and ECEs typically work in a year. Ms. Smith testified that a comparison was done that resulted in a number that was fairly close to what the Board paid for the 10 months worked by the employees and another number was generated which was fairly close to the bi-weekly pay. The Grievances Bryna Casavant testified for the Union. She was hired as an EA on a long term assignment in October 2018. The position was from December 3, 2018 to no longer than June 28, 2019. Her hire letter said that the “annualized salary for this position is $37,005.89 plus 4% vacation pay”. It provided a link to the Terms and Conditions for Support Staff. On July 9, 2019 she was hired for another 1.0 FTE LTO position. That letter said that the “salary for this position is $22.23 per hour plus 4% vacation pay”. On June 15, 2020 she received another 1.0 FTE LTO appointment. The letter said that the “salary for this position is $24.03 per hour plus 4% vacation pay”. On August 25, 2020 she received a 0.5 FTE permanent position. The letter said that the “annualized salary for the 0.5 FTE permanent position is $21,866.79 plus 6% vacation pay”. On October 26 her permanent position was increased to a 1.0 FTE and the letter said that the “annualized salary is $43,733.58 plus 6% vacation pay”. Ms. Casavant has been a Union Steward since September 2020. Ms. Casavant testified that she understood “annualized” meant that it was an estimated salary for the amount of time worked so she thought she would be paid that much over 10 months. She said that she did not think it was unusual to use that term because she was working an “annualized” 10 months. She testified that when she received the offer letter with the hourly rate she did not do the math to see if it was consistent with the salary amount. She said that her pay stubs were relatively the same so she did not put much thought into it. Ms. Casavant also testified that she understood that the amount set out in the wage grid in the collective agreement is the amount she would receive over 194 working days plus vacation pay. On December 4, 2018, Ms. Casavant sent a letter to Krista Helsel, the Manager of Human Resource Services, asking why both of her pay stubs showed an hourly rate because one of them should have been salary. An explanation was provided and she was invited to come in and discuss it further with the payroll expert. 9 Ms. Casavant testified that she realized when she got her last pay stub in December that it was drastically less than she anticipated making that year and she decided to raise that with the Union. She said that she had expected to make what was set out in her hire letter and in the collective agreement. She then spoke to Ms. Pencoff and they called the Union’s Business Representative. Ms. Pencoff testified that several people who had been hired in the previous year raised concerns when they received their T4s in early 2020. They expressed concern that their T4s did not match what was on the grid. Ms. Pencoff said that they contacted Human Resources and were not satisfied with the response. She advised that they decided that it was a problem they should address with the Union’s assistance. Ms. Pencoff later testified that the “new hires” had raised the issue before the T4s were issued but she could not recall when. She subsequently produced an email dated January 22, 2020 to Human Resources asking “why my gross year to date on my last 2019 pay stub, doesn’t match my standing gross amount on the pay grid.” Ms. Pencoff testified that she did not file a grievance sooner because she did not really know what was going on. The Union produced a template letter sent to parents whose children had been approved for “Jordan’s Principle” funding. The amount of funding for an EA set out there was different from the amount listed in the salary grid. Ms. Pencoff testified that Jordan’s Principle EAs are included in the bargaining unit and that the daily rate in the letter was never disclosed in bargaining. She said that she understood those services are fully funded by the federal government. Some of Ms. Casavant’s appointments were Jordan’s Principle funded and she testified that she received the same rate of pay when working in those roles. Mr. Zafiriadis testified that they discussed postings for Jordan’s Principle EAs in bargaining but that the Board had never disclosed any wage formula. He said that he did recall a discussion about the rate that they would be paid. Ms. Sinclair testified that when a student is approved for Jordan’s Principle funding, the Board pays the EA and sends an account to the federal government at the end of the year and it reimburses the Board. By the Board’s calculation, the difference in gross pay for an EA on September 1, 2019 between paying the salary listed in the agreement over 10 months versus 12 months would be the difference between $2,165.48 and $1,699.07 biweekly. COLLECTIVE AGREEMENT The relevant articles of the collective agreement include the following: Central Provisions C6.00 WORK YEAR The fulltime work year for all employees employed in EA and ECE job classes shall be a minimum of 194 days to correspond with the school year calendar. Local Provisions 10 ARTICLE 9 –GRIEVANCE PROCEDURE 9.3 An effort shall be made to deal with grievances promptly and it is understood that an employee (or group of employees) has no grievance until they have first given their immediate Supervisor the opportunity of adjusting their complaint. 9.4.2 Time Limits – Time limits provided for in the grievance and arbitration procedure of this Collective Agreement are mandatory. Non-compliance with the time limit(s) will cause the grievance to expire and the grievance will be conclusively deemed to have been finally abandoned. The parties may expressly agree in writing to extend such time limits. 9.4.3 No grievance shall be considered where it is raised more than ten (10) full working days after the grievor became aware or ought reasonably to have become aware of the circumstances and concern giving rise to the grievance. 9.4.4 Section 48(16) of the Labour Relations Act does not apply to the application of time limits under this Article. 9.5 Step 1: Informal Stage 9.5.3 The concern must be raised within ten (10) days after the employee, group of employees, or the Union becomes aware, or should reasonably be expected to become aware, of the circumstances giving rise to the concern, or the grievance will be null and void. 9.6 Step 2. Formal Stage 9.6.1 Failing satisfaction with the reply in step 1, within fifteen (15) days of the reply, the grievance shall be submitted in writing to the Manager of Human Resource Services. ARTICLE 10 – ARBITRATION 10.4 Authority of the Arbitrator b) The Arbitrator, shall have no power to alter, add to, subtract from, modify or amend this Agreement or any part of it, nor give any decision inconsistent therewith, nor to deal with any matter that is not a proper matter for a grievance under this Agreement. ARTICLE 19- WAGES 19.1 The wages will be as set out in Schedule A, attached to and forming part of the collective agreement. 19.2 An employee will automatically progress from one step to the next in the salary range for their classification on completion of each anniversary year from date of hire in the permanent position. 11 SCHEDULE A-COMPENSATION General Wage Increase – August 31st, 2018 – 0.5% as per the extension agreement dated January 31st, 2017 That statement is followed by a wage grid with a starting rate and three steps for EAs and a starting rate and four steps for ECEs. There is a grid for February 1st, 2019 and another one for August 31st, 2019 with the 0.5 percent applied. The February 1st grid lists highest rates of $43,955.95 for EAs and $51,109.79 for ECEs. The August 31st grid lists a top rate for EAs at $44,175.73 and a top rate for ECEs at $51,365.34. The Board says that the grid is the annualized 12 month salary and not the amount of money the EAs and ECEs were actually being paid prior to certification because they were only paid for 10 months. The Union says that the ECEs and EAs should be paid the full amount over the 10 months that they work. Schedule A also includes hourly rates for Lunch Hour Monitors, Casual EAs and Casual ECEs. SCHOOL BOARD COLLECTIVE BARGAINING ACT The relevant sections of the SBCBA include the following: 2 (2) In this Act, local bargaining refers to collective bargaining between a school board and a bargaining agent for local terms to be included in a collective agreement. 2017, c. 3, s. 1 (4). (3) In this Act, central bargaining refers to collective bargaining between an employer bargaining agency and an employee bargaining agency for central terms to be included in a collective agreement between a school board and a bargaining agent. 3 (1) This Act applies to every school board in Ontario, to the bargaining agents that represent employees of those school boards and to the employees represented by those bargaining agents. (2) This Act applies to every employer bargaining agency and employee bargaining agency designated under this Act to represent school boards or employees for central bargaining purposes. 11 (1) For bargaining units of employees of a school board who are not teachers, the bargaining agents are determined under the Labour Relations Act, 1995. (2) Every trade union that is certified or voluntarily recognized as a bargaining agent for a bargaining unit that is not a teachers’ bargaining unit after the day section 2 of the School Boards Collective Bargaining Amendment Act, 2017 comes into force shall advise the Minister in writing within 30 days following certification or voluntary recognition. 2017, c. 3, s. 2. 12 12 (1) Collective bargaining for a collective agreement between a school board and a bargaining agent shall include both central bargaining and local bargaining. 2017, c. 3, s. 3 (1). 13 (1) The parties to central bargaining at a central table are the applicable employer bargaining agency and employee bargaining agency. (2) The Crown is required to participate in central bargaining at each central table. 14 (1) The parties to local bargaining are the school board and the bargaining agent that represents the applicable bargaining unit of employees of the school board. (2) The Crown is not entitled to participate in local bargaining. 15 (1) An employer bargaining agency that represents specified school boards has exclusive authority, (a) to represent the school boards during bargaining at a particular central table; (b) to exercise all of the school boards’ rights and privileges under the Labour Relations Act, 1995, and to perform all of their duties under that Act, in respect of central bargaining; (c) to bind the school boards to the central terms of their collective agreements; and (d) to exercise the rights and privileges and perform the duties described in sections 42 and 43. 17 (1) An employee bargaining agency for specified bargaining units has exclusive authority, (a) to represent employees in the applicable bargaining units during bargaining at a particular central table; (b) to exercise all of the bargaining agents’ rights and privileges under the Labour Relations Act, 1995, and to perform all of their duties under that Act, relating to central bargaining; (c) to bind the employees, and their bargaining agents, to the central terms of their collective agreements; and (d) to exercise the rights and privileges and perform the duties described in sections 42 and 43. SCOPE OF CENTRAL AND LOCAL BARGAINING 24 The matters to be included within the scope of central bargaining at a central table shall be determined by the parties at the table and the Crown in accordance with section 28. 13 27 If a matter is not within the scope of central bargaining at a particular central table, it is within the scope of local bargaining. 28 (1) The parties at a central table and the Crown shall meet within 15 days after the notice of desire to bargain has been given under section 59 of the Labour Relations Act, 1995, or within such further period as they agree upon, and they shall bargain in good faith and make every reasonable effort to agree upon the matters to be included within the scope of central bargaining at the central table. 2014, c. 5, s. 28 (1). (3) A dispute between the parties to local bargaining about whether a matter is within the scope of local bargaining shall be referred to the parties at the central table and the Crown to determine. 2014, c. 5, s. 28 (3). 33 (1) If a notice of desire to bargain is given under section 16 of the Labour Relations Act, 1995, the following rules apply: 1. The local terms of the first collective agreement shall be negotiated by the applicable school board and bargaining agent. 2. The first collective agreement is deemed to include the central terms negotiated by the designated employee bargaining agency that represents the employees in the bargaining unit, as determined under section 20 or 20.1. 3. The first collective agreement must have an expiry date that is the same as the date determined under this Act for collective agreements in operation on the date on which the bargaining agent acquired bargaining rights under the Labour Relations Act, 1995 with respect to the bargaining unit. If the collective agreement does not provide for that date, it is deemed to have done so. 4. The term of operation of the collective agreement may be less than one year. 2017, c. 3, s. 15 (1-3). COLLECTIVE AGREEMENTS 40 (1) A collective agreement includes central terms and local terms. 2017, c. 3, s. 18. (2) A collective agreement also includes terms and conditions that, under this Act or the Labour Relations Act, 1995, are deemed to be included in it. GENERAL 45.1 (1) In case of a conflict or an inconsistency within a collective agreement between any of the central terms and any of the local terms, the central term prevails. 2017, c. 3, s. 23. (2) In case of a conflict or an inconsistency between a collective agreement and this Act, or a regulation made under it, this Act or the regulation made under it prevails. 14 EXTENSION AGREEMENT The Extension Agreement in effect from September 1, 2017 to August 31, 2019 includes the following provision: 5. COMPENSATION School boards shall adjust their current salary grids, wage schedules and position of responsibility allowances only, in accordance with the following schedule: … • February 1, 2019 • 1% • August 31, 2019 • 0.5% SUBMISSIONS The Union submits that the issue to be determined is whether the wage grid in the collective agreement is based on 10 months or 12 months. It argues that it is based on 10 months. The Union contends that the EAs and ECEs are 10 month employees so a plain reading of the wage grid is that it represents what they will be paid over 10 months. The Union contends that the most straightforward and harmonious reading of the collective agreement leads to the conclusion that the salaries in the grid are for 10 months. It maintains that the language is unambiguous and that there is no need for recourse to negotiation evidence. The Union asserts that past practice evidence that predates its certification is not necessary or relevant. The Union submits that the Employer’s interpretation of the wage grid requires the addition of language and a mathematical formula to the collective agreement. It insists that an arbitrator does not have the authority to make such additions. The Union argues that, even if there were found to be ambiguity on the face of the collective agreement, the past practice evidence was confusing and unclear. It contends that the practice cannot reveal the mutual intention of the parties because it predated the first collective agreement. The Union does not dispute that the parties agreed to import the wage grid from the Support Staff Procedure into the collective agreement. It says, however, that there was no discussion about it at that time and the Employer did not advise the Union that they were 12 month numbers and not what the members of the bargaining unit would be paid. The Union argues that the manner in which employees were paid before certification is unclear. It maintains that the document the Employer provided with the individual salaries did not line up with the wage grid, nor did the employees’ T4s. It asserts, as well, that the salary in the Jordan’s Principle letter was not the same as the salary numbers in the wage grid. The Union says that the Employer did not disclose the 15 Jordan’s Principle amount and that the employees did not know about it. It contends, therefore, that the past practice was confusing and unclear. The Union submits that Ms. Sinclair agreed that it was confusing. The Union denies that the grievances are untimely. It says that the employees could not reasonably have been aware that there were issues with their pay until they got their year end balance and saw the disparity. The Union submits that if there was a delay, this is an appropriate case for the arbitrator to exercise her discretion to extend the time limits under s. 48 of the Labour Relations Act, 1995. In the alternative, it submits that these are continuing grievances. The Union argues that every time a payment is made to a member of the bargaining unit that is inconsistent with the collective agreement it is a fresh violation. The Union denies that there is any prohibition in the SBCBA against parties negotiating wages at the local level. It argues that they did negotiate wages because they agreed to include the wage grid. The Union submits that sections 24 and 27 of SBCBA say that the parties agree to what will be dealt with in central bargaining but do not say that wages cannot be discussed at the local table. The Union contends that, in any case, the issue of whether they could negotiate wages is a red herring because the issue in this dispute is the interpretation of the wage grid. It says that the wage grid applies to 10 month employees so it means that is what they get paid over 10 months. The Union submits that it made a broad request for information when it gave notice to bargain and the Employer provided no information that indicated that the wage grid was not what the members were paid. According to the Union, the parties, therefore, agreed to a wage grid that applied to 10 month employees. The Union also submits that this is not an interest arbitration and the issue is not what the employees should be paid. It says that the issue is what the language means. The Union argues, further, that the impact of a decision finding that the salaries on the wage grid must be paid over 10 months is irrelevant. The Union seeks: • A declaration that the Employer has violated the collective agreement • A declaration that numbers on the wage grid are 10 month numbers and that its members be paid accordingly • An order that employees be compensated for lost wages and benefits The Union refers to the following awards: U.A.W., Local 439 v. Massey-Harris- Ferguson Ltd., 1955 CarswellOnt 434; Windsor Police Services Board and WPA (12-Hour Shift Change), 146 C.L.A.S. 234; Cavendish Appetizers and UFCW, Local 175 (R517-0165), 140 C.L.A.S. 259; DHL Express (Canada) Ltd. v. CAW-Canada, Local 4215, 76 C.L.A.S. 105; U.S.W.A. v. Diebold of Canada Ltd, 1966 CarswellOnt 528; Warehousemen & Miscellaneous Drivers, Local 419 v. Holland River Gardens Co., 1965 CarswellOnt 721; Bullmoose Operating Corp. v. C.E.P., Local 443, 67 C.L.A.S. 329; Royal Homes Co. and C.J.A., Local 3054, 22 C.L.A.S. 237; Sensient Flavors Canada Inc. v. U.S.W., Local 3950, 2011 CarswellOnt 1016; Securitas Canada and UFCW, Local 1400 (493 S2/11), 113 C.L.A.S. 199; Ontario Power Generation Inc. and Society of Energy Professionals 16 (Sloan), 133 C.L.A.S. 204; Bedford Furniture Industries Inc. v. U.S.W.A., 71 C.L.A.S. 287; Becker Milk Co. v. Teamsters, Local 647, 1978 CarswellOnt 885; Waterloo Region Credit Union Ltd. v. O.P.E.I.U., Local 343, 1986 CarswellOnt 3742; Family & Children’s Services of Renfrew (County) v. O.P.S.E.U., 76 C.L.A.S. 92; Religious Hospitallers of St. Joseph of Hotel Dieu of Kingston v. O.P.S.E.U., Local 452, 28 C.L.A.S. 215; Huronview Home for the Aged v. S.E.I.U., Local 210, 44 C.L.A.S. 381; Huronview Home for the Aged v. S.E.I.U., Local 210, 2000 CarswellOnt 3836. The Board denies that it has violated the collective agreement. It submits that there is no dispute that the wage grid in the collective agreement was imported from the Support Staff Procedure. The Board says that it has interpreted that wage grid as an annualized salary for more than 10 years. It denies, therefore, that the language of the collective agreement is as clear and straightforward as the Union claims. The Board argues that the wage grid in the collective agreement cannot be interpreted without taking into account the central agreement and the reference to the Extension Agreement. According to the Board, the parties were implementing a deal that was already made at the central table. It says that they were not negotiating a salary grid or an increase in wages. The Board denies that local parties are permitted to negotiate wages under the SBCBA. It contends that the SBCBA makes central and local items mutually exclusive. The Board asserts that once the central parties agreed that salaries and wages would be negotiated centrally they cannot be bargained locally. It notes that the parties themselves acknowledged that at the bargaining table. The Board maintains that the local parties did not have the authority to change the annualized wage grid that it had been applying to the members of the bargaining unit to a 10 month grid. It says that would be the same as negotiating a 20 percent salary increase which they were not permitted to do. The Board submits that the Memorandum of Settlement for the Scope of Central Bargaining Table For Negotiations in Accordance with the School Boards Collective Bargaining Act, 2014 listed matters within the scope of central bargaining and that they were all almost all financial related matters. It says that supports its claim that financial issues are dealt with at the central table. The Board says that makes sense because the school boards are funded by the government. The Board argues that the SBCBA provides that the central agreement is incorporated into first collective agreements. In this case, the existing central agreement was the Extension Agreement which states at section 5 that “School boards shall adjust their current salary grids, wage schedules and position of responsibility allowances only, in accordance with the following schedule”. The schedule only provided for a further increase of 0.5% on August 31. According to the Board, that increase, therefore, had to be applied but no other increases could be. It emphasizes that the agreement refers to “current salary grids”. The Board maintains that the current salary grid was the one in the Support Staff Procedure for the members of this bargaining unit and that it was an annualized grid. It says that is underlined by the parties’ agreement to use the words “in accordance with the extension agreement”. The Board submits that it is unfortunate that 17 the parties did not discuss the grid but is not surprising given the context in which they agreed to include it in the agreement. The Board argues, further, that the existing rates must be included in a first collective agreement except for centrally negotiated annual increases. It says that the collective agreement does contain a centrally negotiated provision at C7.00 for “Specialized Job Classes” that permits parties to apply a skills shortage allowance to a job class in certain circumstances. The Board contends that that emphasizes the fact that salaries cannot be negotiated locally. It also points to LOU#1 which it claims is a freeze on layoffs that limits its ability to pay for any increases. The Board also submits that the wage grid includes hourly rates that do not appear in the Support Staff Procedure but correspond to the 12 month formula the Board uses, not the 10 month interpretation the Union proposes. It argues that the Union agreed to those numbers and must have done some math to determine how the rates were generated or it would have asked questions. The Board also denies that its payment practices are confusing. It asserts that its practice with respect to the wage grid was clearly understood by payroll and other people at the Board. The Board acknowledges that the employees may not have understood its payment practice but insists that it was consistent. The Board denies that the Jordan’s Principle letters contribute to any confusion. It submits that the employees themselves never see them. The Board asserts that the amount included in those letters is a parameter of funding that may be requested but does not specify what an employee will be paid. The Board denies that it bore an onus in bargaining to explain to the Union how employees were paid. It says that the parties were not negotiating salaries and there was no discussion about that. The Board also asserts that it never thought that the Union and the employees did not understand how employees had always been paid under the wage grid. It submits that while this was a first collective agreement, the employees on the bargaining team were not new. The Board maintains that it is not unreasonable to expect that employees know how much they are being paid in a year. It also contends that Mr. Zafiriadis’ spreadsheet shows that he did know that the salaries on the wage grid were annualized. The Board argues, further, that an interpretation of the collective agreement that meant that the parties had negotiated a 20 percent increase in this central bargaining context would be absurd. The Board submits that the deal the central parties reached in the Extension Agreement is that school boards shall adjust their current salary grids. It says that means that the wage grid in the collective agreement must be interpreted the same way as the one in the Support Staff Procedure, which has always been annualized numbers. The Board argues that the parties understood that they could not negotiate anything different for salaries and notes that Mr. Zafiriadis said that he just wanted to make sure that the employees got the 0.5 percent in August. The Board contends that it is the intentions of the central parties who negotiated the salary increases that are relevant to this dispute but that they are difficult to determine 18 because they were different parties. It says, however, that their intention could not have been to give a 20 percent increase to these employees when all of the other employees of school boards across the province were only getting 0.5 percent. The Board contends that that is even more unlikely when one considers that there is no layoff provision in the central agreement so no way to pay for such an increase. The Board argues that the collective agreement cannot be interpreted without considering the context in which it was negotiated. It contends that the context is that there was a central deal in place and money was already negotiated. The Board maintains that the local parties could not amend, increase or decrease that settlement. The Board notes that it is represented in central bargaining by the Catholic School Trustees Association which is part of the Provincial Association of School Boards. It argues that the SBCBA requires that the Crown participate in central bargaining because collective bargaining for school boards is costly and the Crown pays those costs. The Board contends that the Crown has agreed to the wage increases included in the central agreement but does not participate in local bargaining. The Board argues further that OPSEU participated in central bargaining and is bound by that agreement. The Board submits that the SBCBA provides at section 33 that a first collective agreement incorporates the central agreement so they were limited to the increase set out in the Extension Agreement. It also argues that the statute provides at s. 45 that if there is a conflict between central and local terms in a collective agreement, central terms prevail. The Board contends that that means that if the wage grid were not found to be annualized it would be in conflict with the central terms which provide for only a 0.5 percent increase. It insists that the increase must, therefore be restricted to that. The Board also argues that there are three employees in the bargaining unit who receive vacation with pay which effectively makes them 11, not 10, month employees. The Board submits that that fits with an annualized grid but does not fit with the Union’s interpretation. The Board also refers to section 2.2 of the Support Staff Procedure. It points out that the Procedure applies to employees who work 10 months, 11 months or 12 months and says that explains why it uses annualized salaries. The Board maintains that using an annualized salary puts everyone on an equal footing and salaries can be compared. The Board submits that the Union must either be claiming that it knowingly bargained the 20 percent increase that would result from treating the wage grid as a 10 month grid or that it did not think that it had negotiated an increase but realized that since there is no explicit statement about an annualized grid in the agreement it could claim one. The Board maintains that the former is not permitted under the SBCBA and that the latter would be an unfair result. The Board submits that there was no reason that employees would not be aware of what they were paid because they receive pay slips and T4s every year. It says that they received pay equity letters that set out hourly rates and that a Pay Equity Plan was posted. The Board also notes that the OMERS statements sent to employees include contributory earnings for the year which reflect the salary they actually receive. It says that the statements also refer to annualized contributory earnings. 19 The Board also refers to Mr. Zafiriadis’ spreadsheet. It says that he testified that he made the spreadsheet to ensure that the members knew what they would be receiving. The Board also contends that Mr. Zafiriadis said that he did not know that the salaries on the grid were annualized. However, according to the Board, the spreadsheet shows that Mr. Zafiriadis was calculating what the employees would make over 22 of 26 pay periods. It says that the spreadsheet referred to the amount employees would make over 10 months if it is a 12 month annualized gird, including the bi-weekly amounts. The Board asserts that the author of the document would not generate those numbers unless he was aware that it was pro-rating the grid. The Board maintains that the spreadsheet also shows what the bi-weekly amount would be if it paid the full salaries over 10 months so Mr. Zafiriadis was comparing the numbers and could see how much of an increase it would be. The Board submits that Mr. Zafiriadis testified that he shared his spreadsheet with his team. It submits that he was not recalled to explain the calculations and says that should lead to an adverse inference. The Board also argues that the grievances are untimely. It submits that the collective agreement contains time limits and that grievances are supposed to be filed within 10 days. The Board contends that employees would have received their pay slips in September but that the Union did not file the grievances until the following February. It submits that these parties have agreed that an arbitrator does not have authority under the Labour Relations Act, 1995 to extend time limits. The Board asserts that if these are found to be a continuing grievances, the delay should be considered in determining remedy. The Board asks that the grievances be dismissed. It refers to Air Canada v. Air Canada Pilots Assn., 2012 CarswellOnt 4390 and District School Board Ontario Northeast and COPE, Local 249 (Morin), 2017 CarswellOnt 14407. The Union replies that the numbers on Mr. Zafariadis’ spreadsheet were only electronic scribbles. It also says that the spreadsheet should not be considered because it is an extrinsic document. The Union denies that the SBCBA prohibits the parties from changing local wage grids especially in a first collective agreement. It says that a wage grid is a local term that can be negotiated by local parties and that the Extension Agreement only dictates what the schedule of increases will be. DECISION The issue to be determined in these grievances is whether the wage grid included at Schedule A of the collective agreement lists 10 or 12 month salaries. The Union argues that the collective agreement should be interpreted on its face without any consideration of extrinsic evidence. It says that such an approach must lead to the conclusion that the salaries listed are to be paid out over 10 months. The collective agreement does not say that the salaries reflect either 10 or 12 months of employment. However, I agree that a new employee who works the school year might look at Schedule A and think that was the amount they would be paid for 10 months. Article C6 of the collective agreement does say that EAs and ECEs work a minimum of 10 months. Nevertheless, the context in which the collective agreement was negotiated leads to conclusion that the salaries reflect 12 month amounts. 20 The Union contends that the collective agreement must be interpreted without recourse to any external evidence. However, the parties were not free to ignore the SBCBA when negotiating the agreement and I cannot ignore it in interpreting the agreement. This collective agreement was negotiated in the context of the SBCBA which specifies at s. 33(1)2 that the terms of the central agreement are deemed to be included in a first collective agreement. The terms of the Extension Agreement are, thus, deemed included in the collective agreement negotiated between the parties. The Extension Agreement provides: “School boards shall adjust their current salary grids, wage schedules and position of responsibility allowances only, in accordance with the following schedule…” The Extension Agreement, therefore, limits adjustments to “current salary grids, wage schedules and position of responsibility allowances” to the negotiated increases. The Employer had already applied the negotiated increases to its wage grid except for the 0.5 percent due on August 31. The parties agreed to include that increase as they were required to do. The Union contends that there is nothing in the SBCBA which prohibits a newly certified union from negotiating a wage grid with higher increases but the Extension Agreement does prevent that and the SBCBA says that it must be included in the collective agreement. The Extension Agreement says that the parties shall adjust their current salary grids, wage schedules and position of responsibility allowances only, in accordance with the attached schedule. The current salary grid that applied during bargaining was the one in the Support Staff Procedure which includes 12 month numbers. The Extension Agreement does not say that current wages “as set out in an existing collective agreement” or anything similar to that. It just says “current salary grids etc.”. The parties were, therefore, precluded from agreeing to any increases to the wage grid. I note that no one indicated whether there was any wage restraint legislation that applied to wage increases for the employees prior to certification. The SBCBA also provides that only matters that are not within the scope of central bargaining are within the scope of local bargaining. Salary, including grids, wage grid movement and wage adjustments were matters included in central bargaining so the local parties could not negotiate about them. These parties were, therefore, limited to including the increase negotiated in central bargaining in their first collective agreement. Furthermore, although the Union now argues that it could and did negotiate a large increase to the salaries being paid to the members of the bargaining unit, the evidence was clear that its bargaining team knew it could not negotiate wages. All of the witnesses said that. Furthermore, the only evidence that the Union assessed the wage grid in the Support Staff Procedure is Mr. Zafiriadis’s spreadsheet on which he did appear to be calculating how the salaries would be paid if pro-rated. There was no dispute at any time until these grievances were filed that the parties were limited to the increase set out in the Extension Agreement and they referred to it in their collective agreement. I find, for all of those reasons that the parties were unable to negotiate wage increases and were required to include the 0.5 percent increase set out in the Extension Agreement in their collective agreement. The question then is what the employees were paid under the existing wage grid that the parties were required to include in the collective agreement. The evidence established that the wage grid in the Support Staff Procedure lists 12 month salaries. The Support Staff Procedure includes terms that apply to employees who work 12 months, 10 months or 11 months and the salaries are 21 set out as 12 month amounts. That permits comparing rates between jobs, job evaluation, pay equity review and maintenance, and consistency of administrative functions. It is also consistent with treating the 10 month employees as being laid off during the summer, Christmas and March break so they can receive Employment Insurance benefits. The Union is correct that the past practice evidence cannot be used to show that it acquiesced to how the wage grid in the Support Staff Procedure was applied since it did not represent the employees at that time. However, the Union witnesses did acknowledge that they knew that they could not negotiate wages and that, in effect, the parties had to continue the past practice with respect to wages. The past practice, therefore, is relevant to what the wages actually were. Evidence of what the wages were is, therefore, essential. The evidence clearly established that for more than 10 years the employees who became members of the bargaining unit were paid a pro-rated amount of the salaries listed in the wage grid that was included in the collective agreement There are several reasons why the members of the Union’s bargaining team should have known that the salaries listed in the wage grid were 12 month salaries. The employee members of the team had worked for the Board for some years. They had received multiple T4s and pay slips indicating the amount they were paid each year and it was considerably less than the salaries set out in the wage grid or in their hiring letters. Also, as noted, there was also some evidence that the Union’s representative did know that the salaries were “annualized” because he was making calculations consistent with that understanding. Furthermore, the collective agreement refers to three employees who received paid vacation which essentially makes them 11 month employees. That works if the salaries are “annualized” but not if they are paid out in full over 22 pay periods. Additionally, the parties agreed to include an hourly rate for casual employees in the collective agreement which is not included in the Support Staff Procedure. That number was established by using the start rate for the positions divided by 1820 which is a 12 month, not a 10 month, number. On the other hand, there is nothing in the wage grid that says how many months it applies to. That lack of information is consistent with a general lack of transparency about the Board’s payment practices. The Board and its witnesses used the terms “annualized” and “annual” as if they are different things that somehow explain its payment practices. However, the evidence indicates that the Board sometimes uses those terms interchangeably to mean a salary as it would be applied to someone working 12 months. The Board used the term “annualized salary” in their hire letters but the Support Staff Procedure and the document they provided to the Union setting out the list of bargaining unit members and their salaries use the word “annual”. Nevertheless, the Board appears to mean the same thing by both terms. If the Board does not use the term consistently it should not be surprising that an employee would not know what an “annualized” salary is when that is written on their hire letter. Even if it had used the words consistently, a new employee would not necessarily understand what “annualized” means. It is not less confusing that neither the word “annualized” nor the word “annual” is used in the wage grid even though the salaries listed are actually “annualized”. If the Board had been more transparent in communicating that its salaries, including the ones listed in the collective agreement, reflect 12 months of employment and will be pro-rated for those who work less, these grievances might never have been filed. 22 Ultimately, I need not determine what the Union’s bargaining team understood about the wage grid because it could not have negotiated anything different even if it had known that the wage grid included 12 month salaries. However, while I reserve judgment on whether the Union’s bargaining team knew the salaries in the grid were 12 month salaries, I have no doubt, based on the evidence, that it knew that it had not negotiated what would amount to an almost 20 percent increase. The Union argues that the evidence of what the members of the bargaining unit were actually paid before certification is confusing but it has failed to establish that anyone was ever paid the amount on the grid over 10 months. It is true that the T4s, list of salaries with allowances and vacation pay etc., and Jordan’s Principle letters do not all have the exact same number as the salary grid because they all reflect different calculations. However, none of those documents suggest that the employees were being paid a salary that was even close to what they would be paid if the wage grid reflected 10 month salaries. Furthermore, the Employer’s assertion that the EAs and ECAs were paid 10/12s of those salaries is born out by its witnesses and the T4s. Employees should be clearly advised that the salaries the Board uses are all 12 month salaries and that they will be paid a pro-rated amount depending on how much they work. Nevertheless, that lack of transparency cannot change the fact that the parties were precluded from negotiating increases greater than those set out in the Extension Agreement. In light of that, the parties agreed to include the existing salaries in the collective agreement and those salaries are pro-rated. For all of the above reasons, the wage grid cannot be interpreted the way the Union proposes. I find that the Union has failed to meet the onus of demonstrating that the Employer has violated the collective agreement by pro-rating the salaries set out in the wage grid of the collective agreement. As I find there was no violation of the collective agreement I need not determine if the grievances were untimely. The grievances are dismissed. January 17, 2022 ___________________ Laura Trachuk Arbitrator 24 For all of the above reasons, I find that the Employer had just cause to terminate the Grievor’s employment. The grievance is dismissed. April 19, 2021 __________________ Laura Trachuk Arbitrator fu,tr