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HomeMy WebLinkAboutPosteraro Group 11-04-14 Po"S"""~ f!-Prf?-D G ~U P 20Dcq - D2 s-lo - OD i 1 IN THE MATTER OF AN ARBITRATION BETWEEN: THE CITY OF HAMILTON ("the Employer") AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 256 ("the Union") IN THE MATTER OF: GRIEVANCE REGARDING PAY FOR UNION BARGAINING COMMITTEE SOLE ARBITRATOR: Kevin M. Burkett APPEARANCES FOR THE EMPLOYER: Mark Mason Brent Browett Nenzi Cocca Stephen Dewar - Counsel - Director of EMS - Labour Relations Officer - Manager of CQI EMS APPEARANCES FOR THE UNION: John Brewin Brad Thomson - Counsel - Executive Member Hearing in this matter was held in Hamilton, Ontario on April 4, 2011. AWARD This grievance concerns a claim for pay for members of the Union's negotiating team in connection with the negotiation of the current collective agreement in 2009. More specifically, the claim is for pay for the five members of the Union's negotiating team who met on September 18, 2009 to review the Employer's proposals and to formulate the Union's position in response to these proposals in preparation for a September 21, 2009 face-to-face negotiating meeting. There is no dispute with respect to my authority to hear and determine this matter. The parties tendered an agreed statement of facts that stipulates as follows. 1. This is a group grievance filed September 19, 2009. 2. The group is composed of the bargaining unit members of the Local's Negotiating Team engaged in negotiations with the Employer of a new collective agreement: Local President Mario Posteraro, Jamie Ramage, Brad Thomson, Pierre Poulin and Ron Dikaitis. 1 3. The claim is for pay for time spent on Friday, September 18, 2009 in a seven and a half hour meeting to consider the Employer's proposals in the negotiations and to prepare the Union response to those proposals. 4. The claim is made pursuant to Article 16.02 of the Collective Agreement: 16.02 The Employer agrees to recognize a Bargaining Unit Negotiating Team consisting of the Local President and four (4) additional members of the Bargaining Union plus a paid representative of the Ontario Public Services Employees Union. Time spent in negotiations/caucus, including essential services negotiations, up to and including Conciliation shall be considered as work time paid by the Employer. The Union may bring outside counsel to the table as required. 5. The parties were negotiating the successor collective agreement to the fIrst agreement between the parties that covered the period April 1, 2004 to March 31, 2009. That agreement provided that the terms of the agreement would continue in force subject to notice to the contrary by either party (Article 34.01). Notice to bargain was given by the union on January 5, 2009. 6. Prior to the 2004-2009 agreement, the parties were governed by the terms of a collective agreement negotiated by the Employer and CUPE who represented employees of the City of Hamilton. That agreement provided for paid leave of absences for the members of the Union Negotiating Teams for "the attendance at all meetings with Officials of the Employer ...." The wording of Article 2 16.02 that included the word "caucus" was new to the 2004-2009 Collective Agreement. It does not reflect any previous language or practice governing the relationship between the parties. 7. There is no extrinsic evidence bearing on the meaning of the term "caucus" as it is used in Article 16.02. 8. On March 31, 2009 the parties exchanged written proposals. Negotiations commenced with a face-to-face meeting on April 30, 2009 and continued with four face-to-face meetings in May and June. At the fourth meeting on June 15, the parties were unable to fmalize a new collective agreement and the next scheduled negotiation date was September 21, 2009. At that time there was no discussion or agreement between the parties with respect to whether or not any meetings held between negotiation dates would constitute a "caucus" for the purpose of Article 16.02. 9. The parties did meet on September 21 and 22, as planned, and continued negotiations. Four more negotiating meetings were held between October 5 and December 9, 2009. 3 10. As noted above, on September 18, 2009 the Union Bargaining Committee, consisting of the five grievors and the OPSEU staff representative, met for seven and a half hours to review the Employer's proposals and the Union position on those proposals in preparation for the September 21 face-to-face negotiating meeting. The Employer has no knowledge of such a meeting beyond what has been communicated by the Union. The issue between the parties relates to the meaning of the word "caucus" in article 16.02 of the collective agreement. The Union takes the position that the word "caucus" was intended to cover Union bargaining committee meetings convened to deal with bargaining issues during the course of the bargaining process. Accordingly, it is argued that the Union committee meeting on September 18,2009 was a "caucus" within the meaning of article 16.02 such that the members of the Union bargaining committee were entitled to payment as if at work under article 16.02. The Union concedes that Union committee meetings held in preparation for bargaining prior to the commencement of bargaining are not "caucus" meetings within the meaning of article 16.02. The Employer, on the other hand, argues that the reference to "caucus" in article 16.02 was intended to capture the periods during the course of face-to-face bargaining between the parties when the Union committee withdraws to consider its position. The Employer asserts that meetings held by the Union bargaining committee during periods when the parties are not in face-to-face negotiations, as on September 4 18, 2009, are not "caucus" meetings within the meanmg of article 16.02 and, therefore, no payment to the Union bargaining committee is required. There is no dispute between the parties as to the meaning of the term "caucus" used in its collective bargaining context, i.e. a meeting amongst the bargaining committee members from one side, exclusive of the bargaining committee members from the opposite side, to process information, consider bargaining responses and otherwise strategize. The issue here concerns the meaning of the term within the context of article 16.02 and in particular whether it is limited to caucus activity when the parties are meeting face-to-face. To this extent, the term "caucus," as it appears in article 16.02, is at least latently ambiguous. However, no extrinsic evidence related to the negotiation of this term into article 16.02 was tendered. Further, although the prior CUPE collective agreement that covered these employees was tendered, it shows only that bargaining committee member payment for caucus time was not expressly provided for as it has been under the instant collective agreement. However, the express provision for payment for caucus time where there had been no such provision in the CUPE collective agreement, without more, does not assist in resolving the question as to whether the intention was to provide payment for all caucus time during the course of bargaining up to and including conciliation or whether it was intended to cover only caucus time when the parties were meeting face-to-face. Finally, although there are two awards (cited by the Union) that refer to the term "caucus" (see re: Brampton v. CUPE, Local 831 [2002J OLAA No. 456 5 (Saltman) and Beachville Lime Ltd. v. Communications, Energy and Paperworkers Union, Local 3264 [2001J OLAA No. 531 (Kennedy)), these references simply confmn the general meaning of the term and, therefore, are of no assistance in resolving the specific issue raised by this grievance. The essence of the Union position is that absent any express limitation upon when, following commencement of the collective bargaining process, the Union committee is to be paid for caucus time, it must be found that any caucus that takes place during the collective bargaining process for the purpose of furthering the Union's bargaining agenda requires payment of the Union committee under article 16.02. The essence of the Employer position is that clear and unequivocal language is required to establish a right or entitlement under a collective agreement. Brown and Beatty, Canadian Labour Arbitration 4.2100, Canada Post Corp. and CUPW (1993) 39 LAC (4th) 6 (Bird) and CUPE, Local 561 (1997) 62 LAC (4th) 230 (Devine) are cited in support of this proposition. The Employer argues that not only is there no such language but that the last sentence of article 16.02, that states that the Union may bring outside counsel to the table as required, suggests that the clause is intended to deal with matters related to face-to-face negotiations between the parties. Finally, the Employer submits that it is unlikely that it would ever have agreed to pay the Union bargaining committee for committee meetings held outside the scope of direct face-to- face negotiations that would be at the sole discretion of the Union bargaining committee both as to timing and frequency. 6 Although the issue here is straightforward, its resolution is not. In the fmal analysis, I have decided to dismiss the grievance. Article 16.02 deals with the conduct of face-to-face negotiations. This is clear from the agreement of the Employer within article 16.02 to recogrrize a five-member Union bargaining committee, including the Union President plus a paid representative of OPSEU, and from the further agreement within article 16.02 that "the union may bring outside counsel to the table as required." Except for face-to-face negotiations at "the table," the Employer would have no interest in who or how many may take part in other Union bargaining-related activity, i.e. bargaining preparation or strategy development. The requirement for payment for time spent by the Union committee in negotiation/caucus within article 16.02, as the only other agreement contained within article 16.02, supports the conclusion, therefore, that, consistent with the other agreements contained in the clause, this agreement is also is in respect of face-to-face negotiations. Further, as a general matter, face-to-face bargaining is usually conducted during working hours, while other union bargaining activity, e.g. bargaining preparation, strategy development, etc., is usually conducted outside working hours. It seems to this arbitrator that if payment for negotiation/caucus time as if work time had been intended to capture, in addition to caucuses during the face-to-face negotiations usually conducted during working hours, caucuses at other times called at the direction of the Union, there would have been a clear expression of this intention in the language. There is no such clear expression of intent such that, more likely than 7 not, the direct linkage between negotiation and caucus in article 16.02 was intended to circumscribe the obligation to pay for caucus time to that which occurs during face-to- face negotiations and not to create the more expansive obligation argued for by the Union. Finally, even on the Union distinction between preparation and the negotiating process itself, the caucus at issue here was in the nature of a preparation meeting that could have been held outside of working hours. Bargaining had broken off in mid- June and was to resume on September 21,2009. The Union bargaining committee was preparing for the resumption of bargaining after a three-month hiatus when it met on September 18, 2009. Even on the Union interpretation, therefore, the application of the clause to the September 18, 2009 Union bargaining committee meeting is problematic. While the term "caucus" in article 16.02 is ambiguous in its application to the facts here, I am not persuaded to accept the Union interpretation simply because there is no express limitation to caucuses that occur during face-to-face negotiations. When read in the context of article 16.02, the term, for the reasons expressed in the preceding paragraphs, more likely reflects an intention to cover caucuses that occur during face-to-face negotiation as distinct from caucuses or meetings of the Union bargaining committee that occur at the discretion of the Union bargaining committee outside of face-to-face negotiation, albeit during the course of the collective bargaining process. 8 If I am somehow mistaken in preferring the Employer interpretation, the onus nevertheless remains with the Union. In order to succeed the Union has to establish that the language of article 16.02 provides for payment for bargaining committee caucus meetings that are held at its discretion outside of face-to-face negotiations during the course of the collective bargaining process. The Union has not convinced me in this regard. Accordingly, even if I had not preferred the Employer interpretation on a reading of the language in context, the grievance would nevertheless have had to have been decided in the Employer's favour based upon the onus. Having regard to all of the foregoing, this grievance is hereby dismissed. Dated this 14th day of April 2011 in the City of Toronto. ~~~ KEVIN BURKETT 9