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HomeMy WebLinkAbout1978-0085.Murray.78-09-29CROWN EMPLOYEES CSLLECTIVi EARGAiNiNG ACT Sefore THE GRIEVANCE SETTLEXENT BOARD Between: Before: For the Grievor: For the Employer: Searing: KS. Heather A. !lurray ( Griever) And Ministry of Eealth (Employer) Prof. K. P. Swan - Vice-Chairman Mr. P. E. Coupey - yember Mr. e. Swjtzmar. - Me&er !Is. L. Stevens Ontario Pubiic Service Employees Union 1901 Yonge St. Toronto, Ontario M4S 225 i4r. I. Freedman Counsel, Legal 3ranch Ministry of Health 10th Floor, Hepburn Block Queer,'s Park June 22nd, 1078 Suite 2100, 180 Oundas St. West Toronto, Ontario - i--. -2- '<_ This matter came before the Board on the basis of an agreed statement of facts which, following some discussion of other matters which might also have been placed before us, was left to constitute the entirety of the case on which we are to decide this issue. That statement reads: in the matter of a grievance before the Grievance Settlement Board between.,Ys. H. ,Yurray and the Ministry of Health, the parties agree that: 1) Ms. Murray is employed at the North Bay Psychiatric Hospital as a Unit Secretary -which is a bargaining unit position. 2) MS. Murray was elected as an official union delegate to attend an Office Services Negotiation meeting in Toronto on.Friday, March 31, 1978. 3) Leave of absence to cover the March 31, 1978 meeting was requested and approved under Article 28.2 of the 1977-78 Working Conditions Collective Agreement. 4) Ms. Murray also requested travel time with pay and no loss of credits for the afternoon of Thursday, March 30, 1978 (& day). This request was denied and Ms. Murray subsequently utilized a + day vacation credit to cover her absence on that date. 5) MS. ~urray's grievance is properly before the Board and the Board has jurisdiction to hear the matter. Although there was some discussion about the matter, it appears that the parties are content to have this case decided on the basis that (as may be inferred from the agreed statement) the travel time requested was in respect of actual and reasonable travel time to permit Ms. Murray to attend the negotiation meeting in Toronto on Friday, March 31, 1978. .The collective agreement applicable to this dispute is the Working Conditions Agreement for the period Jan. 28, 1977 to Jan. 31, 1978 which, by virtue of its own terms, remained in effect on the -3- material date. The relevant provisions of that agreement are the following: ARTICLE 28 - LEAVE - UNION ACTIVITIES 28.1 Upon at least fourteen (14) days written notice by the Union, leave-of-absence without pay but with no loss of credits shell be granted for not mre than four (4) consecutive days for each employee delegate for the purpose of attending the Annual.Convention. 28.2 Leave-of-absence with no loss of pay and with no loss of credits shall be granted to a member of the Union who participates in neqoti- ations, mediation or arbitration, provided that not mre than five (5) employees et any one time shall be permitted such leave for any one set of negotiations. Provided however, the Union may et its discretion require up to five (5) addi- tional nembers to participate in negotiations, mediation or arbitration who shall be grated leaves-of-absence without pay but with no loss of credits. 28.3 At .the written reqllest of the Union of at least fourteen (14) days, leaves-of-absence without pay but with no loss of credits shall be granted to en employee for the purpose of setting demands for negotiations. It is understood that such meetings will be held on Saturdays or Sundays and that the total time granted for each instance shall not exceed two (2) cons- ecutive days for each employee. 28.4.1 Upon request by the Union, confirmed in writ- ing, end provided that reasonable notice is given, leave-of-absence with no loss of pay and with no loss of credits shall be granted to employees elected as Executive Board Members and Executive Officers of the Union, for the purpose of conducting the internal busi- ness affairs of the Union. 28.4.2 The Union will advise the Directors of Personnel of the affected Ministries, with copies to the Executive Director, Staff Relations Division, of the names and locations of such employees, imediately following their election. 28.4.3 Leave-of-absence with no loss of pay and with co loss of credits shall be granted to accommodate reasonable travel time. 28.4.4 The Union will reimburse the Treasurer of Ontario for the salary paid to members of the Executi'Je Board end the Executive Officers granted leave under L-k Article. -4- There are other provisions in Article 28 relating to long-term leaves for elected officers of the Union, but those do not directly relate to the matter before us. It is coronon ground that the grievor requested leave both for the March 31 meeting and for travel on March 30 under Article 28.2, and that leave for March 31 was duly granted pursu- ant to that provision. It is the Union's position that Article 28.2 is also broad enough to cover the additional request for travel time, and that the Employer was in breach of the collective agreement in refusing to allow the grievor Lz day on March 30,"with no loss of pay and no loss of credits." It is clear that the Employer did not deny a leave-of-absence, since the grievor was permitted to travel at that time; but the leave granted was without pay. It is also possible, from a reading of Article 13 of the Employee Benefits Collective Agreement, that the grievor would have stood to lose attendance credits by reason of her absence on this occasion, had she not chosen to use C, day of her vacation. Thus, although the only question to be resolved before us is whether the Employer, having granted "leave-of-absence", was wrong in not providing that this leave be "with no loss of pay," it may be that in a similar case where an employee cannot or does not choose to use vacation time to travel the question of loss of credits might also be involved. We do not, however, make any determination here 'as to the interpretation of Article 13 of the Employee Benefits Agreement; our determination is restricted to Article 28.2 of the Working Conditions Agreement. The Employer's case is based on a reading of Article 28 *as a whole, and basically relies on the maxim expressio unius est exclusio al terius. Thus the Employer argues that, because the parties had clearly directed their minds to the issue of'travel time .in Article 28.4.3, they must have intended, by their silence in Article 28.2, to have excluded travel time from the effect of that latter provision. -5- The problem of construction which faces us is a diffi- cult one since, as is often the case, there is no direct clue to the real intention of the parties at the time of concluding the Agreement. Indeed, it is possible that the parties had never previously di-scussed the limitations of the language which they have used, at least not in the context of circumstances like the present. Our duty, therefore, although arbitrators often speak of divining "the intention of the parties", is better described as placing on the words which the parties have chosen a construction which best carries out the reasonable expectations persons using those words must be considered to have had. Although the science of contractual interpretation is often expressed in terms hallowed by legal use but incomprehensible to the casual reader, we consider that our duty can be simply described: we must ask what limits to reasonable expectations are imposed by the language used, and whether the present case is within those limits. We begin, therefore, with Article 28.2, which deals explicitly with the griever's circumstances, and which provides that "IlIeave-of-absence with no loss of pay and no loss of credits shell be granted to a member of the Union who participates in negotiations." This is extremely broad language to describe the provision of leaves-of-absence. No time limits are'placed on the. length of leave, nor is there any attempt to limit the ambit of what participation in negotiations might entail. Nor, indeed, is there any direct relationship expressed between the duration of, the negotiations and the duration of the leave. Read literally, this clause.would authorize leaves for all activities which reasonably relate to participation in negotiations, since the operative part of the clause is that there shall be %O 10s~ of &' and *no loss of credits." If the clause stood alone, therefore, we would have no hesitation in finding that reasonable travel time required for participation in negotiations would be available as a part of the leave-of-absence with pay to be granted under Article 28.2. What, then, is the effect of Article 28.4.3? Does it, by inference, reduce the ambit of Article 28.2? Certainly, were the - 6 - two main provisions for leave-of-absence found in Article 28.2 and 28.4.1 otherwise perfectly parallel, that conclusion would be irresistible. The parties have not, however, chosen to use precisely parallel language, and an examination by juxtaposition is in order. Both provisions are mandatory, and both provide that "leave-of-absence with no loss of pay and with nd loss of credits shall be granted" to specified employees. Here the parallelism ends, however. Article 28.2 provides leave for employees "who participate in negotiations", while Article 28.4.1 provides that the leaves must be "for the purpose of conducting the internal business affairs of the Union". Are these expressions sufficiently different to avoid the usual consequences in contractual interpreta- tion of specifying a right in one place and not in another? The issue.is not an easy one to determine, and there are no real guidelines to assist the Board. Upon reflection, however, we think that there is not sufficient difference between the two clauses to justify a finding that the expressio unius rule does not apply. Article 28.2 describes the general purpose of leave in somewhat different terms from Article 28.4.1, but all our attempt to identify contractual significance in that difference have pro- duced strained and illogical results. In the result, then, having provided specifically for travel time in Article 28.4.1, the parties must be taken to have intended to omit it from the time for which leave-of-absence without loss of pay or credits is provided under Article 28.2. This may not appear in circumstances like the present to be a particularly fair resolution of this grievance, but it is the resolution most consistent with the language of the agreement the parties themselves have signed. One further matter must be discussed. Ms. Stevens, for the Union, advanced the decision in .ee International Nickel co. of Canada Ltd. and United Steelworkers, Local 6500 (1?77)', 13 T,.A.C. (22) 13 (Shim) as requiring the present Employer to act "reasonably" in the interpretation of Article 28.2. With respect, we do not think that that case is applicable, since it deals with discretionary leaves and the reasonable exercise of the Employer's discretion. -J- Here the leaves are mandatory, and so the Employer's obligation is to bring itself within the meaning of the collective agreement, whether that is reasonable or not. Ms. Stevens also referred us to Article 30, which does provide for discretionary leaves, and to which the INCO case might arguably apply. There is, however, no evidence that any leave was applied for under Article 30, which requires intervention by the Deputy Minister and the Civil Service Commission, and is thus procedurally quite different. In the result, therefore, the grievance is dismissed. Dated at Toronto this 29th day of September 1978. K. P. Swan Vice-Chairman I concur P. H. Coupey Member I dissent (see attached) B. Switzman Member AX3iTXATiON OPS3J (Xrs. Seather A. Xurray) Ministry of iiealth DISSENT In the resolution of this grievance my colleagues have employed the "expressio unius..." maxim.and based on a comparison of Article 28.4 to Article 28.2 they have dismissed this grievance. Xith respect I cannot agree with my colleagues' conclusions. In the first instance Article 28.2 is clear and unambiguous. The parties have turned their minds to the question of compensation for employees involved in negotiations. They have determined that such an employee will not suffer a loss of pay or credits. There is no dispute that the grievor was such an employee and fell squarely under the operation of Article 28.2. Yet by my colleaguesf award, the grievor will suffer the losses precisely prohibited by this article. Thus I would respectfully submit.that in examining the effects of my colleagues' award they have imposed an interpretati,on which the contract cannot reasonably bear, I would further submit that-should the "exjressio un1us...'( maxim be required, then this board should, - -2- examine the operation of this maxim as the Farties employed it in Article 28.2. The parties beganwith a general proposition that included all union members who participate in negotiations, mediation or arbitration. These employees are to be given leave-of-absence ,,+ith no loss of pay and with no loss of credits while they are engaged in these activities. The parties then commenced to place restrictions or exclusions uponthis general-proposition. In any one set of negotiations only five employees shall be fully compensated. The union may receive leave for five additional employees but their leave-of-absence will be 7Mithout pay. These were the exclusions that the parties imposed. They .chose not to exclude required travel time from the full compensation proposition of Article 28.2. Yet the effect of my colleaguesf award is to add this further exclusion which the parties themselves had chosen not to do. rirticle 27.12 of the collective agreement expressly denies such jurisdiction to our board. My'colleagues have determined that the "expressi unlus..." maxim is to be applied through a comparison of Article 28.4 to Article 28.2. In the majority award it states that, . ..Vpon reflection, however, we think that there is not sufficient difference between the two clauses to justify a ~finding that the exotessio unius rule does not apply.* -3- iiith respect I cannot agree with this conclusion. Article 23.4 encompasses eledted members of the executive board and elected executive officers of the union. Article 28.2 does not deal with full time union officers. More importantly kticle ,2S.4 deals with union oificers engaged in conducting the internal business affairs of the union. Article 28.2 deals with employees engaged in negotiations, mediation or arbitration. These are totally different situations and cannot be compared. It is reasonable that in the conducting of internal union business that the union through its own finances pay the salary and travel costs of its officers as established in Article 23.4. However, in Article 28.2 it is reasonable that employees not suffer a loss 0f.earning.s or credits for participation in negotiations, mediation or arbitration. Unlike the one-sided nature of internal union business, these three above.named activities establish the conditions by which services are to be provided to the public. It is therefore reasonable that the public pay for the expenses required to~effect these conditions. Government supervisors, managers, etc. are not 'docked travel from their salaries for participating. in negotiations, mediations or arbitrations. If the public is to cover their salaries while required to travel for these activities, then it is reasonable for employees to also be covered. This, I would submit was the intention of the parties when they stated in ilrticle 2S.2 that there was to be no loss of pay and no loss of credit. -4- .&s stated by Xis iionour Judge Lang re Valiace aarnes, 2 WC 417, at DE. 419: "There is a presumption in lav that where language admits of more than one construction and if one construction would lead to obvious injustice the document should not be (so) interpreted." In this instance the interpretation which my colleagues have applied allowsthat the public would fully cover the costs for one side in the negotiations -- the government side, while denying full compensation to the union side. For all of the above reasons I respectfully dissent from the award of my colleagues. Hamilton, Ontario. ,