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HomeMy WebLinkAbout1985-0519.McEwan and Norman.87-07-22BETWEEN: IN THE HATTER OF AN ARBITRATION UNDER TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU'(M. McEwan land S. &xman), Grievers - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Community and Social Services) Employer BEFORE: R. L. Verity, Q.C. J. McHanus W. Lobraico Vice-Chairman Member Member FOR .THE GRIEVOR: B. Hanson Counsel Cavalluzzo, Hayes & Lennon FOR THE EMPLOYER: L. norton Staff Relations Officer Management Board of Cabinet HEARINGS: :; November 20 and December 11, 1986 Mary McEwen and Steve Norman filed individual grievances in 1985 alleging improper denial of premium payment for the second day of ~' a changed shift. The issue involves the interpretation of the second full sentence of Article 10.1 of the Collective Agreement under the heading of "Shift Schedules". The relevant provision of the Collective Agreement reads: "10.1 Shift schedules shall be posted not less' than fif- teen (15) days in advance and there shall be no change in the schedule after it h~as been posted unless notice is given to the employee-one hundred and twenty (120) hours in advance of the starting time of the shift asoriginally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (l-l/Z) for the first eight.~.(8) hours worked on the changed shift p~rovided that no prem- ium shall be paid where ,the change of schedules is caused by events.beyond the ministry's control." The matter proceeded by way of an Agreed Statement of Facts together with ora~l testimony relating to past practice and negotiating history. Wally Gorchinsky, Director Staff Relations Sranch, testified on behalf of the Employer. OPSEU's Chief ,Negotiator, Andrew Todd, gave evidence on behalf of the Union. In addition, the Parties submitted both oral an~d written argument ably supported by arbitral and judicial authority. " 1 . 2. 3 4. 5. 6. 7. -3- The Agreed Statement of Facts read as follows: The grievor, Mary McEwen, has been employed by the Ministry ,of Community & Social Services .for approx- imately ten years. Her classification is Residen- tial Counsellor 2. She is a seniority rated full- time employee at then Rideau Centre in Smith Falls. The grievor, Steve Norman, has been employed by the Ministry of Community & Social Services for approx- imately eight years. His classification is Residential Counsellor 2. He is a seniority rated full-time employee at the Rideau ~Centre in Smith Falls. Residential Counsellors at the Rideau Centre work under a compressed work week arrangement. Mary McEwen works rotating shifts. They are as follows: 7:00 a.m. - 7:30 p.m.; 9:00 a.m. - 9:30 p.m.; 7:00 p.m. -, 7:30 a.m. Shift schedules are usually posted about six weeks in advance. Mary McEwen was off on May 5, 1985, . and was scheduled to work 7:00 a.m. - 7:30 p.m. on May 6 and May 7. On the evening of May 5, she received a telephone call from W. Hughs, Residential Counsel- lor 3, and was asked~ to report at 7:00 p.m. on May 6 and 7, to work the 7:00 p.m. to 7:30 a.m. shift on both days. It is agreed that the change in Mary McEwen's hours for May 6 and 7 was not caused by factors 'beyond the Employer's control'. It is further agreed that Mary McEwen did not receive 120 hours~ notice of ,..i 7; ;,. -, . either of the changed shifts. Mary McEwen worked the changed shifts as requested and received premium payment only for May 6, 1985. She claims premium payment for May 7th. .._ 8. '9. 10. 11. 12. -4 - The grievor, Steve Norman, works rotating shifts. They are as follows: 7:00 a.m. - 7:30 p.m.; 9:00 a.m. - 9:30 p.m.; lo:30 a.m. to 11:00 p.m.; 7:00 p.m. - 7:30 a.m. Steve Norman was off on May 20 and.21;; 1985. He was scheduled to work 9:00 a.m. - 9:30 p.m. on May 22 and 23. When he arrived at work prior to his 9:00 a.m. starting time on May 22, he discovered ..that the schedule had been changed and that he was now scheduled to begin at 7:00 a.m. on May 22 and 23. . The grievor, Steve Norman, worked the changed hours on May 22 (to the extent possible) and on May 23,.~ and received 'premium pay only for May 22, 1985. The grievor claims premium pay for May 23, 1985. It is agreed that the change in Mr. Norman's scheduled hours for May 22 and 23 was not caused by factors 'beyond the Employer's control'. It is further agreed that Steve Norman did.not receive 120 hours notice for either of the changed shifts. The parties agree that the following- issue is to be decided by the Board. Is the Employer's action of paying premium 'payment for the first changed shift worked in ,accordance with Article 10.1 of the Working Conditions Collective Agreement, or should premium payment be paid for all changed shifts that ~fall within the 120 hour notice period?" Briefly stated, Mr. Gorchinsky testified that under Article 10.1 premium payment, where appropriate, is given only for the first" eight hours worked on a changed schedule. He testified that this long standing practice,had remained unchallenged prior to these grievances, 'Further, Mr. Gorchinsky testifieddthat the wording of Article 10.1, agreed upon in 1974, had remained virtually unchanged throughout successive Co,llective Agreements. He testified that the -5 - only change occurred in 1980 when the notice period was extended from 72,hours to 120 hours. Mr. Todd maintained that there had never been a consensus between the Parties on the Employer's interpretation of premium payment entitlement and that the Union disagreed~,with that interpretation. However, Mr. Todd did acknowledge that Mr. Gorchinsky had greater direct knowledge as to the administration of the Collective Agreement.' The issue is the extent and duration of the penalty of premium payment where insufficient notice.has been given to an employee of an altered shift schedule. The Union contends that the premium rate should be paid for each day of the changed schedule. The Employer maintains that premium payment is restricted to the first eigh~t hours of the first day of the changed schedule. Clearly, the Employer interprets the word shift to mean schedule. The Union acknowledqes that there are at least two possible interpretations of the word "shift". However, Mr. Hanson contends that Sc~'~ ._ i.~ there is no ambiguity either patent or latent to justify reliance upon extrensic evidence. He contends that the word "shift" as employed in Article 10.1 has been interpreted by Vice-Chairman Kruger in the Barter Decision, 106/79 to mean "work on a given day". The thrust of the Union's argument was that the Kruger rationale has effectively determined the issue in dispute. Alternatively, Mr. Hanson contends that evidence of past,practice and negotiating history was insufficient -6 - to determine the intent of the Parties. Further, Counsel argued that in the absence of any~ evidence of detrimental reliance the argument of promissory estoppel advanced by the Employer was without merit. In support of its position, Counsel for the Union submitted the following cases: Barter and Ministry of Correctional Services, 106/79 (Kruger); Morin and Ministry of the Environment, 74/77 (Adams),; Re United Brewery Workers, Local 304 and Canada Malting Co. Ltd. (1969) 20 L.A.C. 360 (Weatherill); Re Perth County Board of Education and Federation of Women Teachers' Associations of Ontario and Ontario Public School Men Teachers' Federation (1977), 14 L.A.C,.,(2d) 128 (Brandt); Re Hiram Walker and Sons Ltd. and Distillery Workers, Local 61 (1973),~ 3 L.A.C. (2d) 203 (Adams); Re Country Place Nursing Home - Ltd. and Canadian Union of Public Employees, Local 1854.(1981), 1 L.A.C. (3d) 341 (Prichard); Re North Cariboo Forest Labour Relations c-1 Association and International Woodworkers of America, Local l-424 (1985), 19 L.A.C. (3d) 115 (Hope); and Re St. Michael's Hospital and International Union of Operating Engineers (1973), 3 L.A.C. (2d) 443 ' The Employer argues that the word "shift" is patently ambiguous and that a latent ambiguity emerges in the application of the phrase "the first eight (8) hours". Miss Horton contends that evidence of past practice and negotiating history resolves the ambiguity in the Employer's favour. Alternatively, the Employer submits that if the Union's interpretation is accepted, the doctrine of promissory estoppel -7 - would operate, to bar the Union from enforcing its strict rights. In support, Counsel~for the Employer referred to the following authorities: Barter and the Ministry of Correctional Services (Kruger) (sup-a); Morin and Ministry of the Environment (Adams) (supra); Leitch- Gold Mines Ltd. v. Texas Gulf Sulpher Co. et al (1969), 3 D.L.R. (3d) 161 (Ont. C. A.); Re Hiram Walker and Sons Ltd. and Distillery Workers, Local 61 (Adams) (supra); and Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 4 L.A.C. (3d) 205 (Beatty). Article 10 of the Collective Agreement, as the title specifies, relates to "Shift Schedules". There appears to be four basic elements contained in Article '10.1. First,' there is a requirement to post schedules within a.designated time frame. Secondly, there is a prohibition against alteration of posted schedules unless notice has been given 120 hours prior'to the starting time of the original shift schedulqd,.~ Thirdly, there is a penalty provi,sion requiring premium payment for alteration of schedules on short notice. Finally, there is an exception to the penalty provision in the event that the scheduled change is beyond management's control. Obviously, this arbitrationdeals only w,ith the third element hereinbefore described. The Board agrees with Mr. Gorchinsky's observation that Article 10.1 cannot be described as a model of clarity. In our opinion, the second sentence of Article~l0.1 is unc~lear and ambiguous. In particular; the word shift is patently ambiguous~. There are at . -8 - least two possible and plausible interpretations of the word "shift" - a schedule of work over a period of time or particular hours of work on a>given day. Similarly, we agree with the Employer's argument that a latent ambiguity arises in the application of the phrase "the first eight (8) hours". The Board does not accept the Union's argument that the word "shift" has been interpreted, for the purposes of this grievance, by Vice-Chairman Kruger in Barter and the Ministry of Correctional Services (supra). In that case the Board was required to deal with notice requirements as contained in the first sentence of Article 10.1. The Kruger panel determined that "shift" in that sentence referred to a work period on a given day. However, the Kruger decision did not purport to consider the issue before this panel. Having fo~und an ambiguity, past practice and negotiating hi'story may be admitted as an aid to interpretation. The Board is _.... =-. satisfied.that the admission of extrinsic evidence does support the Employer's interpretation. The Board accepts Mr. Gorchinsky's evidence that the~Parties long standing past practice in excess of 10 years does establiSh.:a consensus or a common understanding as to the extent of the penalty. That practice has not formally been challenged by the Union until the present grievances, and accordingly establishes a consensus between the Parties as to the application and meaning of the provision in dispute. . i‘ The Article first came about as a compromise when the language was first included in the Collective Agreement on January 10, 1975: This language has continued in successive agreements and has been administered on the basis that only the first eight hours of the changed schedule has attracted premium payment; On October 3, 1984, a Union brief filed in an interest arbitration requested'a change' to Article 10.1 to ,include premium payment for all hours worked on a revised schedule. Significantly, the Union's brief before the interest arbitration board contained the following relevant statement: "Currently, notice of change which falls within the one hundred and twenty hour. (120 hour) period results in payment at time and one-half (l-1/2) only for the first~eight hours of the revised schedule". The Union's request was denied by an interest arbitr.ation board chaired by Arbitrator Swan on January 23, 1985; ,.,- In these circumstances, the Employer is justified in applying its interpretation for entitlement to premium payment under Article 10.1. Accordingly, the Employer has properly paid both Grievors for the'first 8 hours of the. changed shift schedule. In the result, these grievances are dismissed. DATED at Brantford, Ontario, this' 22nd'of July, 1967. ((--;& - ‘2 A+; 7 R. L. Verity, Q.C. - Vice-Chairman /f+ Jz 4 ‘/ik-k /r / J. McManus - Member /b&$&i ‘J@ ,~ w. Lobraico - Member