HomeMy WebLinkAboutUnion 23-06-29
B E T W E E N:
OTTAWA FERTILITY CENTRE INC.
(“the Centre” or “the Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 445
(“the Union”)
AWARD
Before: Mark Wright, Arbitrator
Re: Policy Grievance and Grievance of Louise McNeill
Appearances
For the Employer:
Patrick Twagirayezu, Counsel
Justin Di Camillo, Counsel
Danielle Dubois
Donna-May Nielson
For the Union:
Craig Morrison, Counsel
Tami MacDonald
Dianne Hoppe
Louise McNeill
Hearing Dates: September 7, 2022, and May 18, 2023
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Introduction
1. There are two grievances before me (collectively “the grievances”), a policy grievance,
and the individual grievance of Louise McNeill (“the Grievor”), both of which raise the same issue:
does the newly negotiated step 8 to the collective agreement provide a 2.5% increase to an
employee once that employee has completed 15 years of service with the Centre, or does it apply
only once an employee has completed 15 years of service within a particular position?1
2. The Union argues in the alternative. Its first position is that an employee is entitled to the
2.5% increase upon completion of 15 years of service with the Centre. In the alternative, it argues
that an employee is entitled to the 2.5% increase if they have both completed 15 years of service
with the Centre and have also completed step 7 in their position (as will become apparent, the
Union takes that to mean after an employee has worked 1650 hours at step 7 in their position).
The Centre argues that the 2.5% step 8 increase is only available once an employee has
completed 15 years of service within their position.
3. For the reasons set out below, I find that the Union’s first position provides the best
interpretation of the collective agreement language at issue.
Collective Bargaining 2021
4. In the most recent round of collective bargaining, the parties agreed to two provisions
that have given rise to the grievances. The first provision was an Employer proposal that the
Union agreed to on June 8, 2021:
ARTICLE 22 COMPENSATION
NEW definition of anniversary date under compensation Article 22
Anniversary Date, is the date an employee started in their position and is subject to
change if the employee changes to a new position, this does not include if an
employee's status changes. An employee's progression on the grid will be based on
them obtaining 1650 hours and as of their anniversary date. If they have changed
positions within the Centre their new anniversary date will be the start date of the
1 ‘Position’ in this collective agreement refers to an employee’s particular job classification.
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new position, otherwise progression on the grid it is based on their original Date of
Hire (DOH) [sic].
5. The parties reached a Memorandum of Agreement on June 23, 2021, but it was rejected
by the membership in a ratification vote held on July 7, 2021. The parties returned to the
bargaining table on August 17, 2021, at which time the language of the second provision at issue
was agreed to:
“New step 8 (2.5%) for all employees at the completion of their 15 years service
with the center [sic].”
6. With this and other changes that were put before the membership, a new collective
agreement was ratified on August 24, 2021.
7. The parties provided me with bargaining history evidence through will-say statements.
Neither party argues that the bargaining history evidence suggests a shared understanding of
what the agreed-to language was intended to mean, nor does either party allege that an estoppel
arose because of bargaining. The evidence was offered to provide a context in which to
understand the interpretive issues in dispute.
8. On June 9, 2021, the Union proposed a 2.5% increase for Sonographers and
Embryologists:
“NEW STEP EIGHT ON OPSEU GRID TO ACHIEVE WAGE PARITY WITH NURSES’ STEP
TEN, FOR SONOGRAPHER, EMBRYOLOGIST AND MAINTAIN THE CURRENT
VENTILATION BETWEEN THE ANDROLOGIST AND EMBRYOLOGIST.”
9. The June 23, 2021, memorandum of agreement, which was ultimately rejected by the
membership, included the following language regarding the step 8 increase for Embryologists
and Sonographers:
“1%, 1.5%, 1.5%, and Step 8 at 2.5% 15 years Embryologist Sonographers”
The parties did not expressly refer to the “OPSEU grid” at this point.
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10. When the parties returned to the bargaining table on August 17, 2021, the Union
proposed language that extended the new step 8 from Embryologists and Sonographers to all
employees, and for the first time stipulated that the 15 years’ service was with the Centre: “New
step eight (2.5%) for all employees at the completion of their 15 years service with the center
[sic]”. The Centre signed back the proposal as follows:
“Agree to step 8 for all employees however, no job evaluation language added to
CA and no job evaluations.”
11. The language agreed to in the memorandum of agreement and ratified by the
membership, was the same as in the Union’s final proposal: “New step eight (2.5%) for all
employees at the completion of their 15 years service with the center [sic]”. At no time during
bargaining was there any discussion of the relationship between this language and the earlier
language agreed to in article 22.
Facts Giving Rise to the Grievances
12. The Grievor became a full-time permanent employee of the Centre on June 1, 2006. She
began working in the department of Andrology but transferred into the position of an
Embryologist 1 in the department of Embryology in November of 2014. On February 26, 2016,
she moved into the Embryologist 2 position, which is now simply called an Embryologist,
following the deletion of the Embryologist 1 position in 2019.
13. Following ratification of the new collective agreement, the Grievor sent an email to the
Centre asking when she might expect to receive the 2.5% increase to which she believed herself
entitled because she had worked at the Centre for more than 15 years. She received the
following emailed response from the Human Resources Manager, Danielle Groulx, on the next
day, November 18, 2021:
Hi Louise,
The 15 years is tied to Step 8 in the wage grid, and would apply to someone who is
in that position for a total of 15 years. Please see definition of Anniversary Date that
was added to the Collective Agreement.
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"Anniversary Date, is the date an employee started in their position and is subject
to change if the employee changes to a new position, this does not include if an
employee's status changes. An employee's progression on the grid will be based on
them obtaining 1650 hours and as of their anniversary date. If they have changed
positions within the Centre their new anniversary date will be the start date of the
new position, otherwise progression on the grid it is based on their original Date of
Hire (DOH)."
As per our Payroll Documentation:
Louise McNeill started in 2006; but moved to her current position in February
2016.
The Step Increase table Payroll has is as follows:
February 26, 2017 - Step 2
February 26, 2018 - Step 3
February 26, 2019 - Step 4
February 26, 2020 - Step 5
February 26, 2021 - Step 6
February 26, 2022 - Step 7 - She would only be moving up to Step 7 in 2022; which
has a rate of $48.66.
She would not reach Step 8 until 2030/2031
Regards,
Danielle Groulx, CHRL (She/Her)
Human Resources Manager
Ottawa Fertility Centre
14. Later the same day, the Grievor responded by email as follows:
Hi Danielle,
With all due respect here is the copied and pasted exact wording from what my
union agreed to when we ratified our contract:
New step eight (2.5%) for all employees at the completion of their 15 years service
with the center.
It does not have any wording on 'in that position'. It clearly states at the centre. I
understand my anniversary date as that is when I was signed off as a fully trained
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embryologists [sic] and began moving up the pay scale. This 2.5% pay increase is
something entirely different and is based on years of service at OFC.
Louise McNeill
15. The parties could not resolve the issue, and the grievances were filed December 13, 2021.
Submissions
16. The Union argues that the agreed upon language is clear and unambiguous. Upon the
completion of 15 years of service with the Centre all employees are entitled to a 2.5% wage
increase. It submits that that is what the language means, and what the parties intended.
However, given the reference to “step 8” in the agreed upon language, the Union argues in the
alternative that any employee who has completed 1650 hours in step 7 of their classification, and
who has completed 15 years of service at the Centre is entitled to the 2.5% increase.
17. The Union relies on Ontario Power Generation Inc. and The Society of Energy Professionals
(Grievance of Susan Sloan OPGI-2016-6502/2251), 2017 CanLII 77302 (ON LA).
18. The Employer argues that the collective agreement needs to be read as a whole, which
requires that the 2.5% increase after 15 years of service must be read in the context of the
language agreed upon on June 7, 2021, which makes grid advancement contingent on service in
a particular position. In the Grievor’s case, that means she is not entitled to the 2.5% increase
until February 26, 2031, which is 15 years after she began working in her current position as an
Embryologist on February 26, 2016.
19. The Employer relies on the following cases: Canadian Labour Arbitration, 5th Edition,
Donald J.M. Brown Q.C., David M. Beatty, Adam J. Beatty, § 4:21 Normal or Ordinary Meaning
and § 8:17 Progressive Wage Increases; C.E.P., Local 777 v. Imperial Oil Strathcona Refinery, 2004
CarswellAlta 1855; U.A.W., Local 525 v. British Motor Corp. of Canada Ltd., 1968 CarswellOnt 834;
Northern Cables Inc. and OPSEU (Aiken), Re, 2018 CarswellOnt 8363; and Wix Corp. v. U.A.W.,
1976 CarswellOnt 1489.
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20. In reply, the Union notes that the Employer’s interpretation requires the Grievor to work
13,200 hours more than the 1650 hours usually required by an employee to complete a step on
the wage grid before she moves from step 7 to step 8. It suggests this interpretation makes no
sense and is clearly inconsistent with the language of article 22.
Decision
21. The two provisions in question do not easily fit together. The parties did not turn their
minds to the underlying problem in collective bargaining. The grievances were therefore
inevitable.
22. At paragraph 37 of his OPG award, Arbitrator Stout relies on Arbitrator Surdykowski’s oft-
cited passage on the principles of collective agreement interpretation as set out in an earlier OPG
award.2 Paragraph 32 from Arbitrator Surdykowski’s decision is instructive in the present case:
a) Principles
32. The fundamental rule of collective agreement interpretation is that the words
used must be given their plain and ordinary meaning unless it is clear from the
structure of the provision read in context that a different or special meaning is
intended, or the plain and ordinary meaning result would be illegal or absurd.
Words or phrases cannot be ignored. All words must be given meaning, different
words are presumed to have different meanings, and specific provisions prevail
over general provisions. As a matter of general principle collective agreements
must be interpreted in a manner which preserves the spirit and intent of the
collective agreement. However, it is the words that the parties have agreed to use
which are of primary importance. The parties to a collective agreement are deemed
to say what they mean and mean what they say. Allegedly missing words or terms
cannot be implied under the guise of interpretation unless it is absolutely essential
to the clear mutually intended operation of the collective agreement, or to make
the collective agreement consistent with legislation which the parties cannot
contract out of.
[emphasis added]
2 Ontario Power Generation Inc. and The Society of Energy Professionals (Policy Grievance OPGN-2010-5706/1538)
2013 CanLII 87655 (Surdykowski).
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23. The Employer argues that the collective agreement read as a whole requires an employee
to complete 15 years of service in a position before they obtain the 2.5% increase at step 8 of
the grid. The problem is that the clear language agreed to states that an employee is entitled to
the 2.5% increase at step 8 when they complete “15 years service with the center [sic].” It does
not say “15 years’ service in a position” or “15 years’ service in a classification.” Clear
unambiguous language cannot be ignored by reading the collective agreement as a whole: all
words must be given their plain and ordinary meaning unless the result is “illegal or absurd.”
Reading the collective agreement as a whole does not permit a party to ignore and fail to give
meaning to what the agreement clearly says. The Employer’s interpretation in this case must
therefore be rejected.
24. However, at first blush, the Union’s primary position, that all employees are entitled to a
2.5% increase upon completion of 15 years of service, seems similarly flawed. It appears to
ignore the phrase “New step 8” which, one might think, suggests progression on a wage grid
following step seven. The problem is that in accordance with article 22, upon completion of 15
years’ service with the Centre all employees will not necessarily be at step seven of the wage grid
for their position because some may have changed positions during their career at the Centre.
In other words, some employees may not be able to progress to step eight on their wage grid
even though they have completed 15 years’ service with the Centre. Responding to this problem,
the Union argues in the alternative that the 2.5% increase is only available to employees who
have completed 15 years’ service with the Centre but who have also completed a year at step
seven of their respective wage grid.
25. There is, however, a serious problem with the Union’s alternative position. The language
agreed to makes the 2.5% increase available to all employees at the completion of their 15 years’
service with the Centre, not to a smaller subset of employees who have both completed 15 years’
service with the Centre and have also completed a year at step 7 of their wage grid. The Union’s
alternative position, therefore, reads out “all employees” from the agreed upon language, and
requires that a new eligibility requirement be read in—namely, that employees must have
completed a year at step seven of their wage grid to be entitled to the 2.5% increase upon
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completion of 15 years’ service with the Centre. This is clearly inconsistent with the well-known
principles of collective agreement interpretation articulated by Arbitrator Surdykowski, so the
Union’s alternative position must be rejected.
26. This analysis forces us back to the Union’s primary position—namely, that all employees
are entitled to the new step eight increase of 2.5% upon completion of 15 years’ service with the
Centre. That position, however, requires that the phrase “New step eight” be given some
meaning as it is unquestionably included in the agreed upon language. The correct
interpretation, in my view, is that the 2.5% increase at “New step eight” builds a new
compensation level into the collective agreement, but one that is not based on progression as
described in article 22. That is the clear implication of the language of the provision itself, but it
is further supported by article 22, which stipulates that progression on a grid is based on an
employee obtaining 1650 hours from their anniversary date in a position. The relevant language
reads, “Anniversary Date, is the date an employee started in their position and is subject to
change if the employee changes to a new position, . . . An employee’s progression on the grid will
be based on them obtaining 1650 hours as of their anniversary date.” However, nothing in the
agreed upon step eight language makes eligibility dependent upon working a requisite number
of hours in a position. Eligibility for the new step eight has an entirely different foundation; it is
based on years worked at the Centre, not hours worked in a position.
27. The following example illustrates the point. An employee is hired by the Centre and
remains in one position from date of hire. Their date of hire is therefore also their anniversary
date in a position. Upon completion of 7 years’ service with the Centre, the employee will have
completed 1650 hours at step seven of the wage grid for their position. However, they are not
then entitled to move to step eight, which one would expect if step eight were part of the wage
grid subject to article 22. The employee will not be eligible for the 2.5% increase at step eight
until they have completed another 8 years of work at the Centre, which is an additional 13,200
hours from their anniversary date in their position. This example makes clear that attaining step
eight after completing 15 years’ service with the Centre is not part of progression in a position,
even though it is referred to as “step eight.”
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28. While neither party argued that the bargaining history provides evidence that the parties
had a shared understanding of how the two provisions at issue were to be read together, and
neither alleged that the bargaining history somehow gives rise to an estoppel, consideration of
the bargaining history does provide a context in which to understand how a proposal about a
new step eight on the wage grid for Sonographers and Embryologists evolved into a 2.5% wage
increase for all employees, based not on their progression in a position, but rather on their
completion of 15 years’ service with the Centre.
29. In its proposal from June 9, 2021, the Union expressly tied the new step eight to the wage
grid for Sonographers and Embryologists. For ease of reference, the proposal is reproduced again
below:
“NEW STEP EIGHT ON OPSEU GRID TO ACHIEVE WAGE PARITY WITH NURSES’ STEP
TEN, FOR SONOGRAPHER, EMBRYOLOGIST AND MAINTAIN THE CURRENT
VENTILATION BETWEEN THE ANDROLOGIST AND EMBRYOLOGIST.”
However, in the memorandum of agreement from June 23, 2021, the reference to step 8
remained but express reference to the “OPSEU GRID” was dropped: “…Step 8 at 2.5% 15 years
Embryologists and Sonographers.” That memorandum of agreement was rejected by the
membership, but in the memorandum of agreement from August 17, 2021, the reference to
“step eight” now extended this new benefit to all employees and based it on their years of service
with the Centre and not on progression in a position: “New step eight (2.5%) for all employees at
the completion of their 15 years service with the center [sic].”
Disposition
30. The grievance is therefore allowed. I find that the Employer violated the collective
agreement by failing to recognize that the 2.5% increase at the new step 8 is based solely on an
employee’s completion of 15 years’ service with the Centre.
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31. I remit back to the parties any remedial issues beyond this declaration, including the issue
of compensation owed to the Grievor. I remain seized with respect to those remedial issues, and
with respect to any other issues that may arise from the implementation of my award.
Dated at Toronto this 29th day of June, 2023.
Mark Wright--Arbitrator