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HomeMy WebLinkAbout1991-2273.Buckley et al.92-06-25 ONTARtO EMPLOYES DE LA COURONNE _ · CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS .STREET WESt, SUITE 2~00, TORONTO, ONTARIO. MSG 1.~8 TELEPHONE/TELEPHONE: (4 ~8] 326- 1388 2273/9[, 2036/9Z, 22[9/9[, 2220/9[~ 2533/9[ IN T~ ~T~R OF ~ ~IT~TION ~der ~ CRo~ EHP~E8 COL~CT~ B~G~ZNZNG Before BR~ 0PSEU (Buckley et al) Gri evor - ~4 - The Cro~ in Right of Ontario (Minist~ of Health) Brant County ~ulance Se~ice Ltd. ~ployer BEFOg: P. ~opf Vice-Chai~erson I. Thomson M~er D. Clark Me. er FOR T~E G. Leeb ~RIEVOR Grievance officer Ontario Public Service Employees Union FOR T~.E B. Baldwin EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING June 2, 1992 _ DECISION This is a case regarding the "banking" of holiday pay under the Collective Agreement. Initially, the grievance covered the issue of when the time should begin for the calculation of the statutory holidays. However, at the hearing the Employer agreed with the Union that the calculation under the Collective Agreement should begin April 1 of each year. However, the issue remaining in dispute between the parties is whether or not the Collective Agreement provides for a maximum in one's bank at any given time of 48 hours or whether a total amount of 48 hours can be accrued in any fiscal year. The provision in question in the Collective Agreement is Article 14.04: 14.04 An employee shall have.the option of banking holiday pay to withich he is entitled under Article 14.01 subject to the following provisos: (i) The time off must be taken on a date which is agreeable to both Employer and Employee. (ii) The date for time off must fall within the same fiscal year (ie. April i to March 31) as the holiday being banked. (iii) The maximum holiday hours ban~ed in any fiscal year must not exceed forty-eight (48) hours. If the employee is not able to use his banked time as time off within the fiscal year, he will be paid for such time as per Acticle 14.01 at the completion of the fiscal year. The Union argued that the language of Article 14.04(iii) is ambiguous and offered extrinsic evidence regarding negotiation history in order to clarify the ambiguity, The Employer's position was that the language was clear. BUt, for purpose of expediency, the Employer did not,object to extrinsic evidence being heard. That evidence can be summarized as follows. The parties agree that the issue of the banking of statutory holidays was raised by the Union in negotiations. The Union tabled a proposal which would have given an employee the option of banking his holiday pay to be taken as time off at a mutually agreeable date within six months Of the holiday and not to extend from one .fiscal year into the next. There would have been no limit on the number of days to be banked. The Employer's initial position at negotiations was to oppose the idea complotely. The Union's main witness, Dane Normore, explained that the Union proposal for unlimited banking was eventually reduced to an agreement or compromise between~the parties t6 a 48-hour. limit. The 48 hours was justified by the Union because they had a 48-hour work week and they were agreeing to an Employer's proposal to reduce one week's vacation for people at the 5-year seniority mark. The 48-hour bank was seen as compensating for the loss of the one-week vacation and for allowing for vacations for people who were newly hired to the ambulance service. At the point of these negotiations, the work week was 48-hours. The U~ion suggested through one witness that there were discussions held during negotiation about whether the 48-hour limitation would mean a maximum in one year or a "running balance" of 48 hours. But Mr. Normore candidly admitted in examination-in-chief that he did not recall discussions about this matter "in one way or another." He just recalled the language that was ultimately agreed to as part of the Collective Agreement. The Employer's evidence confirms this. The one Union witness who testified that a representation had been made on behalf of management that the 48-hour limitation would be a "running balance" was not at the meeting when the final language was agreed to. We do not. believe that this witness deliberately misled the Board, but may have confused the conversation about a "running balance" with a staff meeting which was held after the signing of the Collective Agreement wherein the President of the Employer did not disagree with the Union's suggestion that the 48 hours amounted to a continuous bank rather than a one-time banking or limit. ~owever, shortly thereafter, management posted a "clarification on banking of holiday pay as per Article 14.04", indicating to employees that management's position was: The maximum holiday hours banked in any fiscal year must not exceed forty-eight (48) hours. For example, if you have 48 hours banked and then used 24 hours, you many not bank an additional 24 hours to bring your total back up to 48 hours. The Union filed no notes of the negotiating meetings. However, the Union did allow counsel for the' Employer to file his notes from the negotiation meetings which essentially confirm that the parties came to an agreement on December 20, 1991 whereby the Employer's proposal that one week of holiday be reduced for employees of five years be exchanged for the Union's request to bank 48 hours of statutory holiday time. The Collective Agreemen~ and the language settled above as Article 14.04 was ultimately signed by the parties. This grievance was ~iled in October 1991, as soon as the Employer issued its clarification notice as to its interpretation of the Article in question. At that point in time, no practice had developed as to the application of the Collective Agreement that would be of any assistance to either party in terms of helping this Board interpret the Collective Agreement because that was the first time that the banking issue could have arisen. The Argument The Union admits that the' issue before this Board of Arbitration was not specifically discussed during megotiattons. However, it was stressed that the understanding of the negotiating team of the Union was that the Employer's concern was that no more' than 48 hours could be banked at one time. It was argued that this was what the language of the Collective Agreement reflects rather than any suggestion that the maximum any one person can accrue in one year is 48 hours. Regarding the fact that the achievement of this language'may have been tied to acceDting the Employer's request for reduced, vacation entitlement~ the Union argued .that this~ought not to diminish the Union's interpretation that an employe~ should be allowed to accumulate up to 48 hours at any given time and thus be allowed a running total during the course of the Collective Agreement. The Union argues that the Droof that the Collective Agreement is ambiguous is the fact that the Employer's President of Operations needed to seek clarification from his counsel regarding the interpretation of the Article. In short, the Union agrees that no employee can b~nk more than 48 hours at any given time. However, the Union argues that the iateat of the parties was to allow the employees to keep a ~running bank of 48 hours and if any time was used up, 'to replenish that bank up to a.maximum of 48 hours. .The Employer argues that Article 14.04(iii) is q!ear and unambiguous and therefOre there is no need to refer to extrinsic evidence to resolve the grievance. The Employer contends that if the Union's argument were accepted, Article 14.03 would essentially be read out of the Collective Agreement because employees would be allowed to bank the total number Of statutory holiday hours over the course of the fiscal year, which would amount to 88 hours off. The Employer argues that the Collective Agreement cannot be read to allow for such an interpretation. Further, or in the alternative, the Employer argues that the extrinsic evidence shows that the position that the Union wiskes this Board to accept was not adopted by the Employer during the course of negotiations. It was said that extrinsic evidence can only be used as an aid to interpretation where it reveals a mutual intent of the parties. The Employer argues that .the extrinsic evidence reveals no such mutual intent and therefore should not be accepted as buttressing the Union's argument. On the contrary, the Employer argued that the extrinsic evidence reveals that it~never would have agreed to allow the employees to bank a total of 88 hours over the term of the Collective Agreement or the ,fiscal year. The Decision In order for a Board of Arbitration to rely upon and be assisted by extrinsic evidence of negotiations, we must be persuaded that there is some latent or patent ambiguity in the language of the Collective AGreement. We must start with a conclusion that Article 14.04(iii) is completely clear and unambiguous. That language states simply and clearly that an employee may only bank 48 hours of statutory holiday time in any fiscal year. That means that a maximum of 48 hours may be banked in a fiscal year in total. The ~language of the Collective Agreemeent does not allow for an interpretation that would invite employees to keep the "running balance" that the Union contends. Otherwise, the words "banked in any fiscal year" would have no meaning, nor would the word "maximum". Therefore, on a str%ctrwordin9 of the Collective AGreement, the Union's argument would have to fail. In fairness to the parties, we feel we should also address the issue of the extrinsic evidence in the interest of good labour relations. Th~ extrinsic evidence makes clear that Article 14.04(iii) came into existence as one of the typical and appropriate tradeoffs that often occur in collective bargaining. In exchange for losing one week's holiday for some of its employees, the Union was able to acquire for the entire bargaining unit the right to bank up to 48 hours of statutory holiday time. The 48 hours amounted to one working week and gave the employees the potential of gaining back that one week's holiday. The evidence before this Board convinces us that the Employer bargaining team walked away from. that set of negotiations with an understanding and intent that the maximum amount allowed to 'be banked in any fiscal year would be 48 hour~. The Union t'eam equally walked away with an understanding and intent that the 48 hours could be calculated by way of a running balance. But as the Union's chief witness admitted, there was no direct discussion of running balances or not. Hence, there was no misrepresentation by one party to another. Instead, when faced with the opportunity of signing off the Collective Agreement in the language of Article 14.04 cited above, the parties accepted that language. Therefore, we must conclude that the extrinsic evidence does~ not persuade us that there was any misrepresentation or mutual intent that could be used to either reveal a latent ambiguity or persuade us that the clear and apparent meaning of the Collective Agreement is anything other than what the words mean on their face. Hence, even on the basis of extrinsic evidence, the Union's case could not succeed. For all these reasons it is our conclusion that the Collective Agreement is clear and unambiguous and provides that a maximum of 48 hours can be banked in any fiscal year. Any statutory time beyond that 48 hours should be paid out to the emDloyees as is the current practice. Hence, the grievance fails. DATED at Toronto, Ontario this 2§thday of Ju~e, 1992.  -~~ e Cha~ pau~a Kn~ 'r /~. Thoms'on - Member