HomeMy WebLinkAboutUnion 22-07-04IN THE MATTE, OF AN ARBITRATION
PURSUANT TO THE
LABOUR RE~LA TZO S ACT., 1995
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 445
(Hereinafter "OP ECJ" or `the Union �
and
OTTAWA FERTILITY CENTRE INC.
( Hereinafter "'OFC" or "the Employer")
RESPECTING:
Policy Grievance 2021-0445-0003
DECISION
Arbitrator: Judith Allen, A.I.M.
OP E U Counsel: Georgina Watts and Viada
Flershtynovich (Student -at -Law),
Morrison Watts, LPC and Ashley
Lora., OPSEU Grievance Officer
Employer Counsel: Erica Bennett Emond Harnden, LLP
Mediation days held February 16th and May 5the 2022; Hearing
day held May 31st, 2022 via ZOOM
Date of Decision= luly 4, 2022
Page 1 of 13
D ECISTO
INTRODUCTION AND BACKGROUND
1. The Union filed a Policy grievance (2021-0445-0003) on
June 20, 2021. Three grievances were also filed in
June of 2021 which have been resolved by the parties through
mediation and without prejudice/without. precedent Minutes of
Settlement dated May 5th, 2022.
. As a result, the only grievance before me Is the Policy
grievance which alleges the collective agreement has been
violated under, but not I its ited to articles 6 (management
rights) and 17 (vacation). The Union alleges that the
Employer is not applying the language on vacation accrual
accurately.
3. Happily, the parties have submitted an Agreed Statement of
Facts, which I mill refer to below where necessary. Dia rine
Hoppe+ the Local OPSEU President, is the only +vitness called.
She was called with respect to article 22.04 of the 2021-2024
collective agreement.
4. There is no dispute that I have jurisdiction to deal with the
interpretive issue before mer subject to article 8.06 vrhich
states that arbitrators "shall not have the a uthorlty to alter or
change any provisions of this agreement or to substitute any
new provision in lieu thereof".
5. The Ottawa Fertility Centre opened i n 2006. In 2008, the
Union became the certified bargain i ng agent for all
paramedical employees. The first collective agreement
negotiated by the parties had an effective date of January 1
2009. Since 2015 the parties have had three collective
agreements: 2015-2018, 2018-2021 and 2021-2024.
Page 2 of 13
6. The grievance was filed under the 2018-2021 collective
agreement while the 2021-2024 agreement was being
negotiated. The language requiring interpretation, article
17.04 has remained substantially the same in the new
collective ag reernent. The parties are agreed that any past
practice argument in terms of fora i ng an estoppel, came to an
end on June 8th, 2021 during bargaining. The Union
continues to rely on past practice with respect to its
application as an aid to interpretation.
LFGAL ISSUE
7. The riarrow legal issue before me is the correct
interpretation and application of article 17.04 which is to be
applied as of July 1, 2021, i.e., the commencement of the
current collective agreement. As noted, the fore -mentioned
individual grievances have settled any i nd ivid ua I claims and
any estoppel argument, Article 10.02+ the service accrual
prevision is relevant, as well. The Union argues that
placement on the wage grid in artic[e 22.04 is also relevant-
S.
elevynt_
S. Article 10.02 states "Employees shall have their service
expressed based on number of hours worked in the bargaining
u nilt where 1,650 hours equals one (1) year of seniority. No
employees shall accrue in excess of one ( 1 ) year entitlement in
a calendar year, Employees shall have their service expressed
Based on a I I hours worked for the Employer where 1,650 hours
equals one (1) year of service.re
g. Article 17.04 of the Coilective Agreement language in force at
the time of the grievances reads ;
17.04 An employee shall, during the vacation year, earn
vacation leave cred Iis at the following mates for each
calendar month during which she receives at feast tern
(10) days pay, with the exception of maternity and
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parental leave. Employees shall be entitled to vacations
with peer In accordance with the following schedul cs
bears of S wice
Less than 1 year of service
from 1 to end of 3 years
from 4 to end of 9 years
frorrl 10 to end of 12 years
From 13 to rind of 19 years
20 years to eiid cif 24' years
24 years and greater
Vacattam Entitlement
0.83 days per month
3 weeks
4 weeks
4 weeks plus two additional
float days)
:5 weeks
6 meks
6 weeks (plus two additional
days)
�3 -'['%
4 D
S.
. 1 / y5 C6 p°[
i
1094
12%
12.154%
10. The substantive language of article 17.04 has not Changed in
the first column other than to remove "`from" and to add "of service'
in the commencement and end of the threshold period. It has
compressed the entftlerrtent between 10 and 19 yea -l-5. W5 added
defln1tions of Full-time and Part -Time Employees to the top of the
middle column and of Part -Time, Temporary and Casual Employees to
the top of the third column, The following chart is the 2021-2024
version:
YOM ()t Sorwice Vacation Entitlemegit Part Time, TPm porary ail -d
Fular Full Time ancf Part Time Casua; Emplayaes
FrE 0.6 and higher}
Less than one year of service 0.935 days per month 49A
I to and of 3 wears of sor,rirA 3 MM&S 615
4 to a.9d of !� yeans of servica 4 yus s 8%
0 to eqd of .9 yu--�rs 5 w89ks 18 ckej
26 years to e-.ld of 24 VC&S of 6 Warks 12%
viae
GreLater than 124 years 6 Weeks (PILAa rOM daya) 12-154 °lc
Page 4 of 13
11. The focal point of the dispute is hew the terms "to the end of"
in the second to fifth steps of the "Yeers of Servicer column in the
2-021-2024 collective agre-ement i mpaa it"s interpretatlon,
12, The Union, argues that the language is u na mbiguou5 and that
when we are bora vve cam nonce our first year of life and at the end
of the year on day 365 we have completed one year. On day 366 we
beg i n out second year of I ife. 'Th us, once we have attained the age
of three years (c�r in the case of this collective agreement 1650 hours
x 3 = 4950 hours), We begin our fourth year at 4951 Fours and
start to accrue vacation entitlement. To do otherwise is to extend a
one year ga p i n entitlement. Th us, applying th is argument to the
chart in para. 10 the commencement of the third level reference to
"4 to end of 9 years ofservice' refers to the beginning of the fourth
year when employees begin to accrue at the higher level, until they
have reached the end of 9 years of service. The '10" at the
beginning of the fourth level continues the previous level seamlessly
because having reached the end of 9 gears In the third level, the
fourth level cora mences at the beginning of the 10th year (ar 14,851
hours) and continues until the end of the 19 years, And so on. The
entitlement is accrued on a monthly basis be�,ed on 1650 hours = 1
year (from article 10 above) rather than from a hard calendar date,
for e. g., December 31 st. The Union argues that having com pl eted
the 3rd year in the previous level, employees move to the beg[ n ning
of the next level to commence vacation accrual on a monthly basis,
13. fps, Hoppe testified about movement on the vvage grid in article
22 of the collective ag reemcnt, She points out that in the wage grid
people also more between levels on the basis of 1650 hours. The
Employer objects on the basis that the evidence is said to be
Irrelevant to my interpretation.
14. Article 22.04 stakes: 'Anniversary Date is the date an employee
stafted in their position and Is subject to change if the employee
changes to a new pa5itionr this does not include if on employee' s
status changes. An employees progression an the grid will be based
on obtaining 1650 Fours and as of the"fr anniversary y date....''
15. The Employer argues that the language is unam big uous and
that the words 'until the end of"' have to be given meaning and they
are very clearly directed at beth the starting and end point of each
Page 5 at 13
IeveL Employees do not start accruing vacation at the next higher
level until they have completed 4 gears and continue to do so until
they've completed g years of service, They dant start accruing
vacation entitlement at the commencement of 16 years, They stmt
accruing entitlements from the end of 10 gears to the end of 19
gears. And so on. The Employer states that it does not create any
gaps as It is defining the threshold for entitlement.
UNION'S ARGUMENT
16. The Union relies on the follovving caselavw:
Sola Basic Ltd. and international Assoc. of Machimsts, focal
Lodge 1168, [ 1976] C)LAA No 3 3 j 11 L.A.C. (2d) 328 (Beck);
Tung -Sol of Canada Ltd. and United Electrical Workers, Loc.
512 1964 Can LII 1021 (ON LA), 15 L.A.C. 161 (Reville);
Burlington (City) and CUPS{ Local 44 ( 2017), 1.30 C. L.A.S.
2810 20-17 Ca rsvvel Wt 3743, (Su rdykowski) i Ontario v.
Datarrc Provincial Police Association, [ 206 51 0. L.A.A. No.
531+ 82 C.L,A. S. 931 (Burkett); Niagara Support
Services v On to rfo Federation of Healthcare Workers, LIUNA
Local 1110, 2017 CanL1I 75144 (ON LA) (Gedalef)+ OP.5EU
and Muskoka Algonquin Healthcare, [ 2D 19] O. L,A.A. No. 289
( a cy k) i Cornwall Community uni Hospital and OP EU# Local
402 (Rivette -Bancroft) (2016), Cars ellOnt 12923, 128
C. L. A. S. 104 CMarcotte) F Villa Forum and L_1UNA, Local 1110
(Barberi) X2016), 176 C.L.A,S, 320f 2016
arswelilOnt 6458, (Misra) f and, Lancia -Bravo Foods and
Amalgamated Meat Cutters & Butcher Workmen (Calculation
of Vacation Pay) , Re, [ 1977 ] O. L.A,A. No. 32, 14 L.A.0 ( 2d )
347().
17. The Union acknoMedges that neither party has found
language identical to the language used in article 17.04. The
Union places great importance on the fact that article 17,04 does
not have a "hard date" for the level of service and seniority
req u I red prior to ju m ping to the next level of entitlement. As
noted in article 10.02, a year is defined as 1650 hours. No one
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can accrue more than 1 650 hours for one calendar year.
However, if an employee has net fret achieved 1650 hours, she
doe not have one year of senjority. There is no hard date such as
December 31st.
18. The Becks and Reville decisions raise principles that are not in
dispute. Earned entitlements are seniority based entitlements
and thus can only be restricted by very clear language.
19. The Surdykowski decision in f3urf ngton has the following
language for vacation accrual'.
a) An a mployee with less than two (2)years' coati n u Ous se arise shall re ive two
(2) weeks vacation with an amount of pay equal to #eu r (4) percent of hisIbQr
gross eaming s, exclus ive of vacatio n pay, paid to r the previous gra ration year.
b) An employee with rn ore th a n two (2) years' Se Moe, but less tha n ten (1 Q)
yea rs' continuous sera ice sha l I receive three (3) woks vacation with an i�imou nt
of pay equal to six (6) pe rcent of h isJher g ross ea rn ings, excl usivo of vacation
pay paid for the provia us vacation year.
c) An employee w ith more tha n ten (1 G� ye a rs' continuous service, but loss than
sixteen (16) years' coati n uc us sefvice shall receive fau( (4) weeks' vacation with
ars amou nt of pay eq ual to eig ht (B) percent of NsIher gross earn ings exclusive of
vacation pay paid io r the previous vacation year.
d) An emp Ioyee with more th a n slit n (16) years' co nti n uo us se rviae but less
than huenty two (22) years' continuous sera ice shall reoeiae five (5) weeks'
v;� dation with ars amount of pay equal to tern (10) percent of h is her g rocs
e a rn i ngs, exu6u sive of vacation pay paid fo r the previous vacation year,
e) An em ployee with more than twenty two (22) years' ca nti n un us se Moe s ha II
receive six (6) weeks' vacation with an a mount of pay equal to twelve (12)
perce nt of his1he r gross eaming s, excl usive of vacation pay pail for the p revio us
vacation year.
f) Atter twenty five (25) years' of service, one ( 1 ) add itiena I city of vacation will be
00crued for each Born p Ieted yea r of sary ice beyond twenty five (25) yea rs, to a
maximum of to n (10) add itio na I days.
2-0. The language in issue in the case is para, f) the accrual of an
'additional day of vacation for each completed year of service
beyond twenty -fire X25) years to a maximum of ten (10)
additional years." The result turns on the the interpretation of
Page 7 cf 13
1%accrualFo. He notes that the preceding language, for e.g., "with
more than 2 years continuous servicer but less than ten years`
continuous service' does not mean that one has to complete 2
years to begin accruing on the basis that each step is defined by
less than X years to more than Y years. The Union notes that in
the case before me vacation entitlement is specifircally expressed
as accrued on a monthly basis and the reasoning of Arbitrator
u rdykovwski is applicable.
1. The Union argues that the two most relevant decisions are
Arbitrator Burkettrs decision in Ontario Provincial Police
Association and Arbitrator Gedalofrs decision in Niagara.
22. The language before arbitrator Burkett in the OPPA decision
is somewhat different from the language [n issue before me.
However, the Union argues that it is equivalent. Specifically, the
provision for Provkncial Responsi i lity Incentive ( PRI) is set as:
3% of the First Class Constable for 6 to 16 completed gears of
continuous service; % for 17 to 22 completed years of
continuous service; and 9 for 23 or more completed years of
continuous service- The Employer was advocating for a definition
that the terms "completed years of continuous service" applied to
Doth the front threshold and the end threshold, thereby creating
a clear gap, The Employer's argument failed.
23. The language before Arbitrator Leda lof in the Niagara
decision has a hard date of "completed years of service as at
December 31". The progression grid has g steps commencing
with "Less than 1 completed year' and grog ressi nq through the
remaining 8 steps with: "1 to 6 completed gears"; "V to 11
completed years',; 12 to 13 completed years; .__ ending with "22 -
or more completed years"". With that Bard date of December
31st, the col lective ag reement did not need to say 1 completed
year of service to 6 years of completed service, as no one would
have a completed year of service until December 31, Moreover,
since the starting place of the grid ends with one completed year
of service, it only made sense that the commencing spot on the
second grid would be 1 completed year of service.
Page a cf 1
24, The Union rel -les on Arbitrator Gedalof's cornments:
If, as the union argued, reading the opening year of
each level as referring to a completed year resulted in a
gap ire entitlement to such a critical and seniority -
related entitlement as vacation, I would agree that this
would constitute an absurd result that vrould militate in
favour of (their] interpretation. But that is not the case
here [at para. 17].
25. The Union argues that the Employer has created a gap in
entitlement In the case before mer after years of accepting the
Union's interpretation.
6. The Employer relies upon the following authorities,
Canadia rr Labour A rbrtra tion 5 th Ed i t i o o [ Bro vv n & 13ea tty ] S.
8:32, Credited Service for Vacation f Mayara Support
Services and Ontario Fe dera troy, of Healthcare Workers,
LIANA, Local 1110 ( Fisher), Re, 2017 Ca i swellOnt 17492
( eda I of) F Canadian Labour Arbitratfon 5th Edition S. 2 : 53
Pa st p ra ct ice f Canadian Laborer Arbrtra tion 5th Ed it i on S. 3 : 7
I ntrod uctian; Cana than Labour Arbftration 5th Edition S.
3:79 past Practice; CUPE and Air Canada Rouge (Vacation
Entitlement), Re, 2018 CarswellNat 2074 ( edalof)F
Northern Cables Inc. a rid OP EV (Arke.n) r Re, 2- 018
Ca rsvwellOnt 3363 at para 2 (Pa rrnar) ; and, Zellstoff
Celga r Limited Partnership and Public and Pri va to Workers of
Canada, Local I (Accommodation), Pe, 2020 Ca rswe I I B
1916 (Komi Kandoia).
27. Specfflcallyr the Employer notes from the Agreed Statement
of Fact that the current collective agreement was being
negotiated at the time the grievance before me and the three
individual grievances that were resolved. Bargaining took place
on June 7, 81 % 1 and 23 vrith the final MOU signed on June
23rd, 2021. On June Sth, 2021 the E=mployer shared a
spreadsheet outlining its interpretation of article 17.04 and it is
Page 9 of 13
agreed that as of that date the parties were on notice that they
did not agree with each other on the interpretation. The June
23rd, 2021 MOU was net ratified. The parties returned to the
bargaining table and in August they did come to an agreement
which was ratified.
8. The Employer argues that there was no substantive
language change to 17.04, although two former grids ("from 10
to 12 years' and from "13 to 19 years" were compressed to one,
which also effected an increase for those with 10y 11, and 1
completed years of service). That is why the parties are agreed
that my interpretation of article 17.04 will be effective July 1,
2021, which is the date of the commencement of the new
collective agreement.
9. The Employer relies upon standard interpretation principles
a s set out i n Canadian Labour Arbitratfon, Supra, at severs
different sections. The first Principle it relies upon is to e a mine
the specific language and in the case before rye the years of
ser Ice thresholds. The 2018-2021 and the 2021-2024 service
thresholds a re set out in the cha rt a bove at paras. 10 and 11.
The only language change is that the word 55from" has teen
removed from the 2nd, 3rd, 4th and 5th grid of the earlier
version and the words "of service' have been added after the
term ears. For greater clarity, The first level threshold is the
same i n both agreements: "Less than 1 year of service"_ The
second level threshold i n the 2-018-2021 collective agreement is
"from one to end of 3 ears." The second level threshold in the
2021-2024 collective agreement is "1 year to end of 3 years of
service". The third level in the 2018-2020 collective agreement is
"from 4 to end of 9 years" and in the 2021-2024 coi lective
agreement is "4 years to end of 9 years "f etc.
30. The second Principle is respecting the uses of "past practice"".
The use as an estoppel, is not before me as the parties are
agreed the estoppel ended on June Sth, 2021. The use of past
practice as an interpretive assistance to arbitrators is only
Page 10 of 13
admitted as extrinsic evidence if there is an ambiguity, and here
the language has a clear and plain meaning. Moreover, while the
Employer agree that the article has i n some cases been applied
in line with the Union's practice, it has never been a clear or
consistent practice, as evidenced by their spreadsheet, which
shows both interpretations applied randomly through the last
collective agreement,
31. The Employer a rigues that the evidence of Ms. Hoppe
respecting the new article 2-2,04 gages is irrelevant and of no
assistance as there is no dispute about how the ce Icu lations are
made. The dispute is abort the threshold of service required to
progress,
32. The Employer a rg ues that the U non Fs interpretation readers
the first level either redundant or inconsistent with the second
level. The fiat level uses the terms Less than 1 year of servicer"
and the second "l to end of 3 years service". If the 1 in the
second level does not mean "the end of 1 to the end of 3 years of
servicer either the first level is redundant or the second level is
more consistent with the Employer's interpretation.
33. Finally, the Employer disagrees that its interpretation creates
a gap i n entitlement. Father the Employer is defining the
threshold for the entitlement.
A NALYSIS AN D DE ISION
34. 1 appreciate the cooperation of the parties in agreeing to the
facts and the legal principles required to address this dispute. I
have carefully reviewed the Agreed Statement of Facts, FIs.
Hop pegs evidence, the case law submitted -and their respective
arguments,
35. t prefer the Union's interpretation used upon its argument
and case lave. While bath parties assert that the language is
unambiguous and its plain and ordinary meaning should be given
Pliage 11 of 13
weighty I agree that given the plain and ordinary meaning of the
language, and to ensure there is no gap between entitlements, it
is most Iog ica I that the words "to the and of" refer to the end of
the 3rd, 9th, .19th and 24th years. That does not ente i I reading
"to the end of" out of the collective agreement. It clearly applies
to the year following the phrase, Le, to completing the 3rd, 9th,
19th and 24th years. To suggest that either "from 4 to or "4 to"
is also subject to the qualifying ""to the end of". does indeed
create a gap. If the Employer wanted that outcome, the
language should read: 'from 1 compieted year to the end of three
years' f from 4 completed years to the end of 9", 5519 completed
gears to the end of 19 years of service Ae, etc. If employees are
accruing vacation on a monthly basis and they have reached the
commencement of their fourth year, hoer does delaying accrual
for 99.9% of that fourth year, not create a gap in entitlement?
36. I agree with the Union that the Surdykowski, Burkett and
Gedaiof decisions are the most pertinent and on point. I agree
that Leda Iof could net interpret the language before him in a
,Wanner favoured by that Union because of the hard date of
December 31st. Otherwise, he clearly would have. I am faced
with the "otherwise" scenario.
37, 1 reject the Employer's argument that the Union's
interpretation readers the first, second and sixth levels as
inconsistent to the third, fourth and fifth levels. The Union
interprets the first level as 0 to 1649 hours. The second level
commences with 1+650 hours. The fifth level ends with 24 years
of service or 39,600 hours. The sixth level begins with 39,601
hours, To the extent that there is an hour of inconsistency
between the first and second level, it is far preferable to years of
delayed advancement, which is how the Employer's interpretation
plays out. It is two important of an earned, accrued, service
based entitlement to permit 4 years of delayed entitlement,
38. Because I have agreed with the Union's interpretation
based on the ordinary meaning of the words before me and the
Page 12 of 13
relevant case lave I have not considered any extrinsic evidence f
including any Past Practice evidence and Ms. Hoppe`s evidence.
DECLARATION
39. I therefore DECLARE that the proper interpretation of article
17.04 effective July 11 2021 is the one advanced by the Union.
For greater clarity, the first level of column one's reference to
"Less than 1 year of service" is the equivalent of "0 to 1649
hours". The second level of colu rnn ones reference to " 1 to end
of 3 years service" is the equivalent of " 1650 hours to 4,9 50
hoursr", The third level of column ones reference to "4 to end of
g years of serviceFF is the equivalent of 4,951 hours to 16,500
hours-". The fourth level of column one's reference to "ID to end
of 19 gears of service" is the equivalent of "16,501 hours to
31,350 hours". The fifth level of the column one's reference to
x20 years to end of 24 years" is the equivaient of "31,351 hours
to 39,600 hours"". The sixth level of column one's reference to
`"24 years and greater" is equivalent to "39,601 hours and
greater'". The teras "to end of" are meaningful and apply to the
end of the threshold it is defining.
40. In the resulk the Union's grievance is allowed.
Dated this 4th day of July fn the City of Ottawa,
Ju ith Allen, A.I.I.
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