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HomeMy WebLinkAbout1991-0904.Rinehart et al.94-11-29 ONTARIO ~=MPLOY£S DE LA COURONNE "'~ ~ C~OWN EMPL OYEE$ DEL'ONTARIO GRIEYANCE COMMISSION DE SE'I'I'LEMENT R GLEMENT BOARD DES GRIEFS tSO OUNOAS STREET WEST, SU[TE 2~00, TORONTO, ONTARrO. ,M5G ;Z8 TELEI=t4ONE/T~L~'PHONE: (.~16) 326-;388 ~80, RUE DUNOAS OUEST, BUREAU2100, TORONTO {ONTARIO). MSG ?Z8 FACSSMSLE/T~LI'.-C. OPIE : [416) 325-;396 904/91,906/91,907/91,1086/91 IN. THE M~TTEIt OF AN ARBITRATION Under: THE CRO~ EHPLOYEE~ COLLECTIVE B~tG~IN:rNG Before THE GRIEVANCE SETTLEMENT BETWEEN OPSEU (Rinehart et -al) · - Grievor ' -- a~d- The Crown in Right'of Ontario (Ministry of Health)Thames Valley Ambulance .. Emplo][er 'BEFORE = R. Verity Vice-Chairperson P. Klym Member M. O'Toole Member FOR THE M. Doyle .UNIO~ Counsel Ryder Whitaker Wright FOR THE P. Whalen EMPLOYER ~ounsel Barristers &.Solicitors HE~RIN~ January 8, 1993 April 7, 1993 January 12, 1994 May 9, 1994 June 23, 1994 DECISION In this matter, we have before us four individual grievances filed by driver/attendants employed by Thames Valley Ambulance Limited alleging that the employer failed to grant the approp~ate vacation entitlement in 1991, contrary to Article $4.02(c) of the collective agreement. Each of the grievors was granted three weeks Vacation with pay for the vacation year beginning April 1, 199L The claim is for four-weeks paid vacation. The dispute is said to involve the proper interpretation of 'Article 34.02 of the agreement. The issue is whether, for the purposes of calculating vacation entitlement, seniority or date of full-time employment is the operative factor. Seniority, of course, includes part-time service on a pro-rated basis. There was no dispute as to the Board's jurisdiction to hear and determine the matter. The following provisions of the relevant collective agreement are material: ARTICLE 34 - VACATIONS · 34.01 For the purpose of calculating vacation ~ntiflement, the vacation y~ar shall be deemed to commence on April 1st of each year, and to end on March 31st of the following year. Vacation pay shall be determined on the basis of thc employee's wage rate of pay for the pay period immediately preceding vacation. A week is regarded as be/nS forty (40) hours. 34.02 Vacation entitlement shall be as follows: (a) less than twclvc (12) months; six percent (6%) of gross carning~ (b) one (1) year to five (5) years; fifteen (15) days vacation, plus pay for one hundred and twenty (120) hours; (c) six (6) years to ten (10) years; twenty (20) days vacation, plus pay for one- hundred and sixty (160) hours; 3 (d) Ten (10) years to twenty (20) years; twenty-five (25) days vacation, plus pay for .: two-hundred hours; (e) ~ In the twentieth (20th) year and thereafter, thirty (30) days vacatio~ plus pay for two hundred and forty (240) hours.- 34.04 Vacation requests will be submitted on or before April the 1st ia each year. Vacations will be allotted on the basis of seniority, provided that such allotment does not result in more than five (5) full time employees being on vacation at any one time. It is understood that the Company reserves the right, where necessary, to alter shift achedulcs to allow a minimum of one full-time and one part-time employee on each crew. Where possible, this shall be accomplished in the following manner, A, On a voluntary basis B. Where there is no volunteer. (i) Employees w/Il be assigned ia reverse order of senior/ry. (ii) No employee shall be required to change scheduled days off. 34.05 Subject to the provis/ons as mentioned before, an employee reques~in$ four (4) consecutive weeks of vacation shall be allowed four (4) weeks of vacation provided that such is consistent with Company scheduling. 'In considering such requests, and any case or cases of conflict, the Company shall consider seniority. AR-TICLE 35 - SENIORITY 35.01 Seniority, as ~eferred to in this Agreement, shall mean length of pro-rated service with the company. Seniority shall be used ia determinin_g preference or priority for promotions, vacations, layoffs, and recall. Seniority shall be on a company-wide basis, The relevant facts are not in dispute. The grievors Rinehart and MacMillan commenced part-time employment with Thames Valley on May 12, 1985. February 26, 1985 was the date of the commencement of part-time employment for Schelhaas and for Stein the date was October 11, 1984. However, all four grievors commenced full-tlme employment with Thames Valley on April 27, 1986. Briefly stated, the grievors claim vacation entitlement on the basis of seniority, including part-time employment on a pro- rated basis. The employer's position is that while the allotment of vacations is governed by 4 seniority, the recognition of part-time service has never been a factor in the calculation of vacation entitlement. The first position of ge parties is that the language of Article 34.02 is clear and unambiguous. The union contends that in the absence of any reference to full-tlme anniversary date, seniority is the operative factor in Article 34.02 and that years of service determine vacation entitlement on April 1 in any given year. In the alternative, Ms. Doyle argues that reference to "years" in Article 34.02 (b) and (c) is patently ambiguous and that the evidence of past practice adduced by the union supports its interpretation of the article. ~ One authority was submitted; namely Cochrane Temiskaming Resource Centre and O~tario , '~.! Public Service Employees Union~ Local 664 (unreported, October 26, 1990 (Chamey)). It is the employer's position that Articles 34.01 and 34.02 specifically exclude seniority and incorporates the concept of "vacation year" for the purposes of calculating vacation entitlement. Alternatively, Mr. Whalen contends that the extrinsic evidence submitted by the employer supports its interpretation 9nd that the evidence called by the union does not assist in establishing a dear and consistent practice. Further, he argues that the evidence introduced by the employer supports an estoppel; namely, that for some 12 years the 'employer has never used seniority for the purposes of calculating vacation entitlement. In support, reference was made to the following authorities: Re Owen Sound General and Marine Hos~pital and Ontario Public Service Employees' Union (1980), 25 L.A.C. (2d) 419 (Beck); Re Block Drag Co. (Canada) Ltd. and Energy & Chemical Workers Union, Local 35 (1990), 17 L.A.C. (4th) 283 (Solomatenko); Re University of Ottawa and Association of Professors of The University of Ottawa (1979), 22 L.A.C. (2d) 192 (Weatherill); R.e 5 Teamsters' Union, Locals 91, 141, 879, 880 and 938, and Motor Transport lndustrial Relations Bureau of Ontario (19~9), 20 L.A.C. 140 (Weatherill); Re Great Atlantic and Pacific Co. Ltd. and Retail, Wholesale and Department Store Union, Local 414 (1983), 12 L.A.C. (3d) 135 (Weatherill); and Re United Automobile Workers, Local 2Z and Northern Electric Co. Ltd. (1971), 22 L.A.C. 163 (Weatherill). The Board's task in an interpretation case is to gather the intention of the parties.; As a general rule, that intention is derived fxom the language of a collective agreement. It is elementary that all of the terms of the collective agreement must be construed as a whole and accordingly words in a particular provision must be interpreted in light of the entire agreement. , In the instant matter, Article 34.01 makes it clear that '~for the purposes of calculating vacation entitlement", the vacation year commences on April 1 of each year and ends March 31 of the following year. The article goes on to address the wage rate for paid vacations. We 'have difficulty accepting the employer's contention that vacation entitlement is calculated in accordance with the number of vacation years to the credit of an employee as of April 1 in any given year. The union's argument appears, to use seniority and years of service interchangeably. In our view, that is not always the case. Article 34.04 provides that 'Vacations will be allotted on the basis of seniority" with the proviso that not more than five full-time employees ,can be on vacation at any one time. Article 34.05 specifies that seniority shall be the operative factor in scheduling vacation requests for employees with four consecutive weeks of vacation. 6 In resolving the issue before us, it is helpful, we think, to read the seniority provisions contained in Article 35.01. In that article, seniority is defined to mean "length of pro-rated serv/ce w/th the company." The ar~cle also provides for "company-w~de seniority." Of particular significance is the provision that "seniority shall be used in determining preference or priority for promotions, vacations, lay-offs and recall." There is, hOWever, no reference in Article 35.01 to the fact that seniority applies to the calculation of vacation entitlement. It is interesting to note that the parties do not appear to have addressed year five ia Article 34.02. We were advised by counsel howeyer, that this was aa oversight and that "five or more years" would have attracted four weeks of paid vacation. ~While it may be said that the wording of Article 34.02 is not a model of clarity, it is sufficiently clear when read in the context of Article 35.01 for us to conclude that there is no ambiguity in the language which would justify reliance upon.extrinsic exr/denee. We read the word "years" in Article 34.02 (b) and (c) as referring to years of full-time service. It is worth noting that the evidence of extrinsic evidence introduced by the parties was not entirely consistent with their respective' positionS. If the parties had intended to include service in the part-time employment status for the purposes of calculating Vacation entitlement, then specific language Would have been required, given the wording of Article 34.01. In our view, the use of seniority is clearly specified in.Article 35.01 in determining "preference or priority for ... vacations." To import the concept of seniority into the calculation of vacation entitlement, given the wording of Article 35.01 would be to effectively alter or change the provisions of this collective agreement, which clearly would be contrary to Article 30.06. 7 B,oth the parties sought to introduce evidence of past practice - the union to support its interpretation arid the employer both to support its particular interpretation and to ground an estoppel. We have found that there is no ambiguity in the language of Ai'ticle 34.02 to justify the admission of such evidence. Similarly, it is unnecessary to consider the \ estoppel argument. In the result, these grievances are dismissed. DATED' at Brantford, Ontario, this .29thday of l~ovember 1994. ! Dissent "DJ. ssent Att:ached" P. KLYM - MEMBER M. O'TOOLE - MEMBER DISSENT OF UNION NOMINEE I agree with'the majority that-our-task-in this case was- to determine the intention of the parties. Specifically, we are asked'to decide what the parties intended by the words 'iyear" and "years'' in Article 34.02. ~ The majority ~oncludes that, even though Article 34.02 is not a model of clarity, it is sufficiently clear that "years" refers ~o "full time service". With respect, no such reference to full time service specifically exists in Article 34 - neither in the overall· application of Article 34 nor in the entitlement Article 34.02. I find it impossible to conclude that there is no ambiguity in ·the language of Article 34.02. Therefore, it is my belief that we can only resolve the intent of the parties by inspecting 'the manner in which they have applied this article in past practice. The employer's witness, Irene Carruthers, testified that she has been responsible for calculating vacation entitlements since 1981 and that she has done this in a consistent manner since then. The evidence from the parties and through Exhibits 7, 8 and 9 was that the relevant language that concerns us was essentially the same from 1981 except that in the i987 Collective Agreement the vacationyear.was changed from the previous July 1st - June 30 to April 1 - March 31. Exhibit'i0 was introduced by Ms. Carruthers to·indicate how She had been applying "years" in Article 34.02. · Thi~ Exhibit t0 covers the period from 1985 on. EmploYee E. Barr has &·full time service date of 4 April 85. Yet during the vacation year at that time of July 1/85 to June 30/86, Barr was given 120 hours vacation· entitlement. Obviously,.Barr did·not have one year of full time service on July 1, 1985. There- fore, Ms. Carruthers was certainly using another yardstick than full time service. Dissent of Union Nomine~_J~9~~~ The same'situation exactly applies to J. Sidderi'us who also has a full time service date of April 4/85. Exhibit 10 als0 shows that both Ba~_and Sidderius received 160 hours vacation entitlement for the vacation year April 1/90 to March 31/91. Yet neither of them had moved out of the "one y~ar to five year" entitlement.group to qualify for more than 120 hours, if full time service was used. Indeed, the same interpretation~regarding entitlement was used'for the four grievors. Ail the g~ievors have a full time service date of April 27/86, For the vacation year of April 1/87 to March 31/88, they were each given a vacation entitlement of 120 hours. Yet they did.not have "one year to five years" of full 'time service on April 1/87. Therefore, full time service was not used in this instance either. From the documents presented to us and the evidence we received, it appears, that.every time, at least since 1985, when this issue of interpreting· vacation entitlement arose, full time service was not used when deciding what ."years" meant in Article 34.02. Ms. Carruthers, when trying to explain Exhibit 10 and what she used to determine ,years" in calculating these vacation entitlements, resorted to an interpretation of "years"'as being · number of vacation.years. This interpretation of the language is not feasiblej and I agree with the majority in not accepting it. It is apparent that the parties themselves have not been using'an interpretation of "years" as meaning years of full time service. Indeed, my review of the file does not-show that the employer took the position that "years" in Article 34.02 meant years of full time service. They.took the position that "years" meant ~ number of vacation years and the majority has rejected this interpre- tation. So, if neither party argued that it was their intent that "years" meant full time service and no clear language says this, I find it difficult to conclude that this Board should so find without being guilty of writing words into the.Collective Agreement. GSB 904/91, 906/91, 907/91, 1086/91 .... 3 - Dissent of Union Nominee (Continued) It is apparent that the,partieswere using.something other than full time service over the years. It is obvio6sly some combination of full time service plus a credit for part time service. This would lead me to conclude that'the only thing that appears consistent is that they were in fact using, seniority to arrive a~ this combination of full time and part time service. I strongly disagree with the suggestion that Article 35.01 prohibits the'use of seniority for this purpose. I would uphold the grievances. Peter Klym ~