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HomeMy WebLinkAboutWakely et al 11-01-17 1 IN THE MATTER OF AN ARBITRATION BETWEEN: THE REGIONAL MUNICIPALITY OF PEEL PEEL REGIONAL PARAMEDIC SERVICES (the "Employer") - AND- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 277 (the "Union") AND IN THE MATTER OF VARIOUS GRIEVANCES REGARDING MEAL BREAKS -OPSEU # 2008-0277-0007 & 2009-0277-0021, 0022 Louisa M. Davie Sole Arbitrator Appearances For the Union: Mitch Bevan For the Employer: John Gescher 2 AWARD These grievarlCes deal with rneal breaks. A Letter of Understanding in the collective agreement between the Region of Peel ("the Employer") and the Ontario Public Service Employees' Union, Local 277 ("the Union") requires the Employer to pay $12.00 if certain criteria relating to the meal break exist. The parties disagree about the circumstances which must prevail in order for a paramedic to receive this $12.00 payment At the commencement of the hearing the parties agreed I was properly seized and did not raise any issues with respect to my jurisdiction to hear and determine the matters in dispute. The Letter of Understanding at issue states: MEAL BREAKS AGREEMENT UNDER REGULATION 491/06, ESA, 2000 The Employer shall provide a meal break of thirty (30) minutes for employees. The meal break shall be no earlier than four (4) hours into their shift and no later than seven (7) hours in the shift. The Employer agrees to pay twelve dollars ($12.00) where all of the following criteria are met: . The paramedic has not been afforded the opportunity to acquire a thirty (30) minute meal break within the above window and, . Management is notified of a possible missed meal break no later than five (5) hours into their shift. Facts The parties proceeded by way of an agreed statement of facts which states as follows: 3 1. The Ontario Public Service Employees' Union Local 277 (hereafter referred to as the "Union") is a trade union as defmed by the Labour Relations Act, 2000 and is the sole bargaining agent for all the land ambulance paramedics operating in and out of the Regional Municipality of Peel. 2. The Union and the Employer have entered into various collective agreements from 2004 to 2007, 2007 to 2010, and 2010 to 2012. The collective agreement which is applicable to these grievances is the 2007 to 2010 agreement and Letter of Understanding 12 and they are attached as Exhibit 1. 3. The issue of meal breaks was dealt with in Letter of Understanding #13 within the 2004 to 2007 collective agreement, which is attached as Exhibit 2. The issue of meal breaks was dealt with in Letter of Understanding #12 within the collective agreement for 2010 to 2012 and it is attached as Exhibit 3. 4. The four grievances filed by the Grievors are attached hereto as Exhibit 4. 5. The position of the Employer is set out in the responses to the grievances which are attached hereto as Exhibit 5. 6. The Employer maintains a procedure for meal breaks and meal allowance in the Standard Operating Procedures - OPS-19. Attached as Exhibit 6. 7. A Paramedic who wishes to make a claim for a missed meal break completes a form entitled "Missed Meal Break Request". The form is attached as Exhibit 7. 8. The Grievors have filed the following Missed Meal Break requests: a) Nijenhuis 38 claims from May 16,2008 to June 5, 2010, attached as Exhibit 8. b) Tzelkos 44 claims from May 1,2008 October 7, 2010, attached as Exhibit 9. c) Malone 50 claims from February 29,2008 to March 26,2010, attached as Exhibit 10. d) Wakely 59 claims from April 9, 2008 to July 18,2010, attached as Exhibit 11. 4 These agreed upon facts were fleshed out by agreed upon documentary exhibits and brief viva voce evidence which indicates the following: 1. In the vast majority of circumstances referenced in paragraph 8 the Employer paid the $12.00 meal allowance. Indeed, the grievances before me arise as a result of only 4 occasions when the grievors' requested payment because the meal break was not completed "within the above window." On those 4 occasions payment was denied because, from the Employer's perspective, the meal break commenced prior to the 7tlJ. hour, and the fact that the meal break extended beyond the 7tlJ. hour was not sufficient to warrant payment. The Employer's reply to the grievance indicates, "From the perspective of the employer there has been no violation of the collective agreement. You were able to acquire (ie gain possession of) your meal break prior to [the] 7 hour mark. The above language does not indicate that the meal break is to be completed prior to the 7 hour mark." The documentary exhibits indicate that in the past three years the Employer has allowed the grievors' claims for payment on approximately 200 occasions when the grievors filled out the requisite form and the rneal break commenced after the 7tlJ. hour. 2. The occasions referenced in paragraph 8 span both the 2007 - 2010 and the 2010 - 2012 collective agreements, both preceding and post dating the filing of the first grievance. 3. The predecessor collective agreement had a similar Letter of Understanding. However, it provided a window which spanned "four (4) hours into their shift and no later than seven and one-half (7 1/2) hours in the shift." 4. The Standard Operating Procedures referenced in paragraph 6 of the agreed facts states as follows: PROCEDURES General The first meal break will be of thirty (30) minutes and will start no earlier than four (4) hours into any respective shift and should be no later than seven (7) hours. Where the first thirty (30) minute meal break does not commence by the 7tlJ. hour Paramedics will be deemed to have missed their first meal break and will be compensated per the collective agreement.... 5 Assignment of Meal Breaks The meal breaks will start no earlier than four (4) hours into any respective shift and should be no later than seven (7) hours. When a paramedic crew has not been afforded the opportunity to acquire a meal due to system demand the following will apply on a rotational basis;... (emphasis added) 5. Evidence with Respect to Past Practice (a) I heard the evidence of Mr. Ben Addley, Deputy Chief and Manager of Paramedic Operations. He testified that it has been the practice and interpretation of the Employer to consider only the start time of the meal break. When the meal break commenced is the factor which entitles the employee to payment. Thus, if the meal break was commenced within the 4th to 7th hour of the shift, the $12.00 meal break allowance would not be paid. It was also Mr. Addley's evidence that, prior to the filing ofthese grievances, there had not been any discussion with Union officials regarding the interpretation of these provisions of the Letter of lJnderstanding. (b) I also received some documentary evidence of discussions at a Union Management Cooperative Committee meeting where the issue of meal breaks was discussed. The minutes of those meetings however are both equivocal and post date the filing of the first grievance. In these circumstances I have not found the minutes to be of any assistance in interpreting the collective agreement, or in addressing the past practice and estoppel arguments of the parties. (c) The form which paramedics rnust complete in order to claim the $12.00 payment contains several questions with corresponding boxes which the paramedic must check as either "yes" or "no". One of the questions asked is "Meal break started between the 4 and 7 hour mark?" This form has been in use for many years and, as paragraph 8 of the agreed-upon facts indicates, has been filed out by these grievors on many occaSIOns. 6 The Employer relies upon this form, and this evidence, to further support its submissions that it has had an open and prolonged practice, consistent with its interpretation of the Letter of Understanding. The form indicates what is significant is the start time of the meal break. It must be commenced within the 4-7 hour time frame, but need not be completed within that time frame. 6. Evidence Regarding Collective Agreement Negotiations The parties did not adduce any evidence with respect to collective bargaining history relating to this Letter of Understanding, or the amendment negotiated in the past round of bargaining. Submissions of the Parties The Union submitted that the language of the collective agreement was clear and unambiguous and required the payment of$12.00 if the meal break was not completed within the window of time that falls between the 4th and the 7th hour of the shift. The Union focused on the words "acquire...within". Citing Oxford dictionary definitions the Union asserted that the former word is synonymous with the notion that one obtains something. Here, the first sentence of the Letter of Understanding provides for a 30 minute meal break. That is what to be obtained by the paramedics. The word "within" indicated the timeframe within which the meal break was to be obtained. "Within" is defined as "inside (something)". The Union argued that the language did not say that the meal break had to "start" or "commence" within the specified time frame. It had to be "acquired" within that time. 7 In response to the Employer's submissions of past practice and estoppel the Union submitted that neither the forms used by the paramedics nor the Standard Operating Procedures of the Employer were of any assistance. These were Ernployer documents which have not been agreed upon by the Union. Moreover, there was no evidence that the parties agreed upon the interpretation of the Letter of Understanding, or that the Union acquiesced in the Employer's interpretation. Similarly, there was no evidence that the Union was aware of the practice that the Ernployer maintains was open and prolonged. The Employer also argued that the language was clear and unambiguous. The Employer however focused on the words "the opportunity to acquire." Relying on dictionary defInitions the Employer submitted that "opportunity" was defIned as "a time or set of circumstances that makes it possible to do something." The word modifying "acquire" (which the Employer agreed means "to obtain an asset or object for oneself') was "opportunity." It was the opportunity which was the subject of the sentence. Thus, the "asset" to be "acquired" was the opportunity, and not the meal break itself. Paramedics were to be afforded the opportunity to acquire the meal break within the time window set out. It was noted by the Employer that the past tense was not used in the disputed language. The Letter of Understanding does not say that the paramedic would receive payment if they had not been afforded the "opportunity to have acquired". Use of that past tense 8 type of language would more readily support an interpretation that the meal break must have been acquired and completed within the window of time specified. Similarly, it was asserted that if the words "the opportunity to acquire" were removed from the Letter of Understanding it would be clear that the subject was the meal break itself, and that it was the meal break which rnust be completed within the window. Then the clause would clearly read "the paramedic has not been afforded a thirty (30) minute meal break." In the result it was argued that the language used by the parties could not simply be read out of the agreernent and must be given meaning. The insertion of the words "the opportunity to acquire" suggests that the "asset", namely the meal break, need not be obtained within the window but can be obtained in the future. A literal analysis therefore indicated that it was sufficient if the meal break commenced within the specified window of time. The Ernployer also advanced several submissions in support of its position that if the language of the collective agreement was ambiguous past practice supported the Employer's interpretation. Finally, the Employer maintained that the same past practice estopped the Union from advancing the interpretive position it has taken in these gnevances. It was the Employer's position that the Union knew, or should have known, of the Employer's consistent and pervasive practice about which Mr. Adley testified. That 9 practice was to consider only the start or commencement time of the meal break. That practice did not require the meal break to be completed within the specified window. The Employer's practice was confirmed in the forms used arId filled out by the paramedics. These forms clearly ask the question whether the meal break "started between the 4 and 7 hour mark." The evidence indicated that these grievors had filled out such a form on approximately 200 occasions in the past 2 1/2 years. On only four occasions, those giving rise to these grievarIces, was the meal break payment claimed denied. The Employer argued this was further support of the Employer's interpretation arId its consistent application of the Letter ofUnderstarIding. Over the past 2 1/2 years all claims filed by the paramedics have been treated in the same fashion, consistent with the Employer's interpretation. The Employer relied upon Simcoe (County) and Service Employees International Union Local 1, 182 L.A. C.170 (4th) 170 (Knopf) arId McKechnie Ambulance Service Inc. and Ontario Public Service Employees Union, Local 347, 27 L.A.C. (3rd) 385 (Verity). In support of its submissions that it had arI open practice which the Union knew, or ought to have known about, the Employer relied also on the Standard Operating Procedures which were readily available to all paramedics. Those StarIdard Operating Procedures also indicate that it is the commencement time of the break which is significarIt. The Employer asserted that the fact that the window of time was decreased during negotiations also pointed to a mutual understarIding that it was the start time of the meal 10 break which was significant. In decreasing the window oftime the parties effectively moved back the time within which the meal break must commence. Decision The grievances are allowed. The language of the Letter of Understanding must be read as a whole. The Letter of Understanding provides for a 30 minute meal break. That benefit is clearly set out in the first sentence of the Letter of Understanding. Moreover, the second sentence provides that the employee must receive that benefit at a certain time in their shift. The subject matter of the Letter of Understanding is Meal Breaks. In my view it is the 30 minute meal break, and not the opportunity to have a meal break, which is the asset which must be "acquired" or obtained within the window of time which falls between the 4th and 7th hour of the shift. The meal break must fall within and be completed inside that window. It is not sufficient for it to commence before the 7th hour of the shift. It is not sufficient to provide the employee with a benefit that is less than a 30 minute meal break between the 4th and 7th hour of the shift. For example, the benefit is not provided if the employee receives a 20 minute meal break within that window of time and a 10 minute meal break thereafter. I do not fmd the language of the collective agreement to be ambiguous. However, even if it were, the evidence of negotiating history or past practice in this case is not clear and 11 unequivocal enough to resolve any ambiguity in favor of the Ernployer's interpretation. Similarly, I do not fmd the evidence to be sufficient to found an estoppel. I turn first to the collective bargaining history. As indicated, evidence of negotiations was not tendered by either party. As a result I am not persuaded by the Employer's submissions regarding the conclusions I should draw from the fact that the window of time was changed. In the absence of any evidence with respect to the intent of the parties in negotiating the Letter of Understanding I have not found the collective bargaining history of any assistance in interpreting the language in dispute. Neither is there any collective-bargaining evidence before me which would indicate that the Union made a representation during negotiations so that it is estopped from taking the position that the meal break must be completed within the window set out in the Letter of Understanding. As to the evidence of past practice, that evidence does not cause me to conclude that the Union's conduct represented to the Employer that it agreed with the Employer's interpretation. That evidence is also insufficient to establish that the Union rnade a representation by acquiescence that the Employer's practice was acceptable so that it is now estopped from taking a contrary position. The evidence indicates that the grievances before me were the first occasions where the meal break payment was denied because the break commenced, but was not completed, within the specified time window. 12 Although approximately 200 claim forms from the grievors have been tendered as evidence, it is clear is that in approximately 98% of those cases the claim was approved because the meal break commenced after the 7th hour. The other occasions when the claim was denied because the meal break started before, but was not completed until after, the 7th hour resulted in the grievances before me. I can't conclude from that evidence that the Union knew of, and agreed with, the Employer's interpretation of the disputed language or should be estopped in this case. At its highest the claim forms filed show only that the Union (and the employees) was well aware that payment would be made if the rneal break started after the 7th hour. The claim forms do not show that the Union (or the employees) was aware of what would happen if the meal break started before the 7th hour but was not completed until after the 7th hour. The fact that the Employer paid the $12.00 when the meal break was started after the 7th hour is not evidence that the Employer did not consider itself obliged to pay the $12.00 allowance where the meal break starts before, but is fInished after, the 7th hour. The evidence before me indicates that a grievance was filed on the fIrst occasion when the Employer administered the Letter of Understanding in a manner which caused it to deny the $12.00 payment because the meal break started before the 7 hour mark but was completed after the 7 hour mark The Employer points to the language on the form and the Standard Operating Procedures language to argue that the Union knew or should have known of its practice and its application of the Letter of Understanding. The Ernployer submits that these documents 13 indicate that the Employer's practice was above board and not hidden from the Union or the employees. I fmd that the evidence does not go so far as to establish and attribute knowledge of, or acquiescence by, the trade Union. Unlike Simcoe County supra for example there is no evidence before me that a practice of denying a meal break claim where the break commenced but was not completed inside the window has been applied to Union representatives without complaint. Neither is there any evidence to indicate that prior to the filing of these grievances the issue before me was ever discussed with the Union. I accept the Union's submissions that the references to "start" or "commence" in the Employer's Standard Operating Procedures does not impute actual or deemed knowledge and acquiescence of the Employer's interpretation or practice on the part of the Union. As to the form used, and a reference to a meal break having" started between the 4 and 7 hour mark?", in my view that evidence is also insufficient to support the position that the Union had knowledge of, or concurred in, the Employer's interpretation or application of the Letter of Understanding. As indicated, unlike Simcoe County supra I do not have any evidence of application of the Employer's position to employee representatives of the Union (i.e. stewards) without complaint from those representatives. There is no evidence before me from which I can conclude that employees or Union officials turned their minds to the form, or the 14 importance of that question to the Employer's interpretation and administration of the Letter of Understanding. Moreover, in my view, the mere reference to a meal break having "started" on the form does not lead one to the conclusion that the start time of the break is tied to the Employer's interpretation that employees need only be provided with the opportunity to commence their meal break within the time window specified. Askllg the question if the meal break "started" between the 4 and 7 hour mark does not clearly indicate that if the break started but did not fInish within that time frame the employee is not entitled to payment for a missed meal break. In all of the circumstances I have concluded that the Union's lack of complaint about the form does not found an estoppel. Union knowledge is a central component of estoppel. As noted in Simcoe County supra how can a Union lose its right to complain if it is unaware of the problem in the fIrst place? The evidence before me does not establish that the Union had that requisite knowledge. For all of these reasons the grievances are allowed. Dated at Mississauga this 17th day of January, 2011. Louisa M. Davie 15