HomeMy WebLinkAboutUnion 21-06-04
IN THE MATTER OF AN ARBITRATION UNDER THE LABOUR RELATIONS ACT,
1995
Between:
Ontario Public Service Employees Union on behalf of its Local 389
(“the Union”)
and
LifeLabs LP
(“the Employer”)
Wage Progression Policy Grievance
Before: Larry Steinberg, Sole Arbitrator
Appearances
For the Employer:
Brian O’Byrne, Counsel
Lui Lanzillotta, Senior Manager, Human Resources
Carmela Mallia, Senior Human Resources Consultant
Josh MacKay, Service Manager
For the Union:
Chris Bryden, Counsel
Renee Aiken Kearsley, President Local 389
Hearing held by Zoom on May 19, 2021
[1] This policy grievance relates to a dispute between the parties regarding the
administration of the wage provisions in the collective agreement. Specifically, the dispute
concerns how employees move through the Steps of the wage grid.
[2] Attached as Appendix 1 to this award is Schedule A of the collective agreement. It
consists of the wage grids effective January 1, 2018 and January 1, 2019, language
explaining how employees were placed on the wage grid and what is to occur “[G]oing
forward” with respect to increases in rate. It is with respect to this latter issue that the
parties are in dispute.
[3] It is the position of the union that the hours paid needed to progress through the
wage grid are cumulative and carry forward from one year to the next . The union also
asserts that the eligibility of employees for a Step increase should occur whenever they
achieve 1950 hours paid and not only at the end of calendar year. It is the position of the
employer that accumulation of hours paid only occurs between January and December
of any year and hours paid cannot be carried forward from one year to the next for
purposes of movement up the grid.
[4] After considering the submissions of the parties the grievance is dismissed.
Facts
[5] The parties resorted to voluntary interest arbitration to settle the terms of the first
collective agreement with a term from January 1, 2018 to December 31, 2019. I was the
Chair of the Board of Arbitration.
[6] With respect to wages the Board awarded “The employer’s wage proposal for 2018
is awarded. The 2019 increase is adjusted to 1.75%”.
[7] The parties incorporated the entirety of the employer’s wage proposal as written in
the employer’s brief into the collective agreement as Schedule A
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[8] At the time of the interest arbitration the employer explained that historically the
employer used a pay for performance model of compensation with the result that there
were many different wage rates in effect for employees. During collective bargaining the
parties agreed to move to a wage grid. This required a process to place employees on
the grid.
[9] This was described in detail in the employer’s submission. The details of that
process are not important in this matter except to note that employees were placed on
the grid without regard to how many hours paid they had accumulated, but rather
according to their wage rate at the time.
[10] For the purposes of this case the key provision was the following:
Going forward, an increase in rate will be provided to progress within a pay
structure based on hours paid.
• Employees below minimum job rate who have accumulated a total of 1950
hours paid between January and December will be eligible for a step increase as
well as a market increase.
• Hours will be reviewed annually to identify any employee who has met the
required hours and is still not paid at the top of the wage grid.
• Once an employee reaches the top step of the wage grid, s/he will no longer
be eligible for a step increase; however, s/he will be eligible to receive annual
market increases.
[11] As noted before, this provision was inserted into the first collective agreement in
its entirety.
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Submissions of the Parties
Union
[12] The union explains that this grievance concerns the fact that employees do not get
Step increases when they reach 1950 hours paid. The union notes that the employer is
applying the provision unfairly. To make its point the union notes that if an employee has
1949 hours paid by the end of December they are not entitled to a Step increase nor are
they permitted to carry these hours paid forward to the next calendar year. The union
observes that this means that conceivably an employee could remain at Step 1 in
perpetuity.
[13] The union submits that on a proper interpretation of the collective ag reement
employees are entitled to a Step increase whenever they reach 1950 hours paid
regardless of when in the calendar year that threshold is reached. In addition, the union
asserts that a purposive and proper interpretation of the collective agreement must mean
that the hours can accumulate from one year to the next. The union strongly asserts that
the interpretation it proposes is consistent with rewarding employees who have
experience in their job.
[14] The union relies on the structure of the wage grid and points to the fact that each
Step in that grid is associated with a specific number of hours all of which are multiples
of 1950 hours. The union asserts that this is consistent with recogn izing the importance
of rewarding employees for experience in the job.
[15] The union also refers to Article 12.03 of the collective agreement which deals with
seniority accumulation. The union notes that the parties have agreed that seniority is
based on 1950 hours worked being the equivalent of one year of seniority. The union also
refers to Article 19.04 of the collective agreement regarding recent related experience
and notes that with respect to part-time employees experience is calculated on the basis
of 1950 hours worked equaling one year of experience. The union asserts that these
provisions, when read together with the wage schedule, support its argument that 1950
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hours is the standard by which employees advance on the wage grid as and when they
accumulate those hours.
[16] The union refers to the wage grid and notes that there is a running tally at each
Step of the grid. The union also notes that the language refers to “…an increase in rate
will be provided to progress within a pay structure on hours paid”. From this the union
argues that it is obvious that the language requires a progression through the wage grid
based on the cumulative number of hours paid to employees.
[17] Referring to the first bullet point in the grid, the union observes that it does not
direct the parties to ignore the cumulative total hours paid nor does it provide that the
clock resets on January 1. The union argues that clear language would be needed to
achieve this draconian result and it is clear that neither the language nor the structure of
the wage grid can support the way in which the employer has administered progression
through the wage grid.
[18] In the alternative, the union argues that to the extent that the language supports
the employer’s position, it directly conflicts with the wage grid which reflects a cumulative
running tally of hours paid. In the union’s view, this conflict permits reference to extrinsic
evidence to resolve the ambiguity in the form of the interest award itself and the
employer’s proposed wage grid as outlined in its brief to the interest arbitration Board of
Arbitration.
[19] The union referred to the following authorities in support of its argument: U.E. Local
512 v. Tung-Sol of Canada Ltd., (1964), 15 L.A.C. 161 (Reville); Re Southlake Regional
Health Centre and ONA (Dilullo), (2012), 224 L.A.C. (4th) 140 (Cummings); St. Joseph’s
Healthcare and OPSEU, Local 152, 2008 CarswellOnt 10004 (Davie); Hotel Dieu
Kingston v. A.A.H.P.O, (1994), 45 L.A.C. (4th) 54 (Brown); Windsor Regional Hospital and
CAW, Local 2458, 2013 CarswellOnt 2550 (Tacon); Toronto Transit Commission and
ATU, Local 113, 2017 CarswellOnt 12133 (Gedalof); Seaforth Creamery Inc. and UFCW,
Local 175, 1999 CarswellOnt 7122 (Brandt); Park Lane Chevrolet Cadillac Ltd. and
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UFCW, Local 175 (Kirby), 2017 CarswellOnt 12676 (Stout) and W.J. Stelmaschuk &
Associates Ltd. and BCGEU (Scafe), 2007 CarswellBC 3799 (Gordon).
[20] The union requests that the grievance be allowed, that employees be made whole,
that employees be properly placed on the wage grid, and payment for any wage losses.
Employer
[21] The employer notes this grievance concerns events in 2019 during the term of the
first collective agreement between the parties.
[22] The employer emphasizes the context in which the language was proposed by the
employer and awarded by the Board of Arbitration . The employer notes that prior to the
collective agreement there was no wage grid. The employer had a pay for performance
system of compensation resulting in different wages rates without regard to a service or
seniority component.
[23] The employer notes that the union strongly opposed the pay for performance
system of compensation and wanted to move to a grid. The employer agreed which
required the parties to address two issues. First, placement of employees on the grid.
Second, how employees moved up the grid. It is this latter issue that is the subject of the
grievance.
[24] The employer notes that the language it proposed and which was awarded by the
Board of Arbitration is clear and unambiguous. The system is not a seniority based system
but rather it is based on hours paid. The process is that hours are tracked on a calendar
year basis (January to December). If an employee has 1950 hours paid (this includes all
paid time) then they move up a Step in the wage grid until they reach the maximum.
[25] The employer argues that the flaw in the union’s argument is that it is approaching
the issue as if it was a seniority issue. The employer notes that Article 12.03 in connection
with seniority refers to an hours worked not an hours paid approach. The employer argues
that movement on the grid is separate and distinct from the concept of seniority as is
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obvious by the difference between hours worked (seniority) and hours paid (movement
on the grid).
[26] With respect to the union’s running tally argument the employer notes that the
employees were placed on the grid without reference to hours paid but only by the wages
they were earning. The employer asserts that the references to hours paid on the grid
was not intended to be a substantive provision but only to illustrate how the progression
would work.
[27] The employer notes that there is no language that suppor ts a Step increase to
employees at other than the calendar year time frame and no language permitting the
accumulation of hours paid from one calendar year to the next. The employer notes that
if the union is unhappy with the current language its remedy is to negotiate a change.
[28] The employer requests that the grievance be denied.
Decision
[29] I have reviewed the cases cited by the union but do not find them to be of
assistance in this case.
[30] The language respecting the timing of movement on the grid is clear and
unambiguous. For convenience it reads “Employees below maximum job rate who have
accumulated a total of 1950 hours paid between January and December will be eligible
for a step increase as well as a market increase”. It is supported by the following language
“Hours will be reviewed annually to identify any employee who has met the required hours
and is still not paid at the top rate of the wage grid”.
[31] As I understand the union’s argument it is that employees should be entitled to the
Step increase as soon as they achieve 1950 hours paid. In addition, the union argues
that if an employee fails to achieve that threshold in a calendar year, then the hours paid
should be carried forward to the next calendar year.
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[32] As for the timing of the calculation of hours paid for purposes of a Step increase
the language of the collective is clear that this is to occur annually and the reference
points for accumulation of hours paid are January to December. I would be improperly
adding words to the collective agreement to hold otherwise in the face of the language
noted above.
[33] In respect of the carry forward aspect of the argument, there is no language that
specifically addresses that issue. The union argues that unless hours paid can be carried
forward from one calendar year to the next it could result in an employee remaining at
Step 1 indefinitely if they never achieve 1950 hours paid in a calendar year. The union
supports its argument by reference to the running tally of hours at the top of the wage
grid.
[34] With respect to the union’s hypothetical, I was presented with no evidence of actual
experience under the existing provision. How many employees did not accumulate 1950
hours paid in a calendar year? What were the surrounding circumstances that prevented
them from achieving the threshold? (I note that the union did not argue that 1950 hours
paid was an objectively unreasonable threshold in the context of the work that these
employees perform.) Are there certain positions which by their very nature make it
impossible to hit the threshold? In the absence of such evidence, all I have is a theoretical
possibility that someone may never advance beyond the lowest level of the wage grid.
[35] The union points to what it refers to as the running tally of hours at each Step of
the wage grid to support its argument that hours paid must accumulate from one calendar
year to the next. At first glance, this appears to be a supportable argument. On further
examination however this does not advance the union’s argument.
[36] First, and most important, there is no language in the wage Schedule that supports
this interpretation. Whether and to what extent employees can accumulate and carry
forward hours paid in the context of this kind of grid is a fundamental feature and it would
be expected that there would be explicit language to that effect. The absence of such
language is a strong indication that it was not intended.
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[37] Second, accumulation and carry forward is inconsistent with the language in the
wage Schedule. It is clear that eligibility for a Step increase is based on the calculation of
hours paid during the January to December time period and is to be reviewed annually to
identify employees who have met “…the required hours…”. The required hours are 1950
hours paid. The accumulation and carry forward requested by the union would be
inconsistent with this language.
[38] Finally, in my view, the references to the hours at each Step of the wage grid are
illustrative of the operation of the system of wage progression and do not have the
significance which the union wishes to attribute to them. As noted above, the numbers
are multiples of 1950 and simply illustrate the number of hours paid at each Step after the
application of the formula used in the languag e. They are not a substantive provision
capable of overriding the language in the Schedule.
[39] For all of the above reasons the grievance is dismissed.
Dated at Toronto Ontario this 4th day of June 2021.
___________________________
Larry Steinberg
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Appendix 1
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