GSB#1510/02

UNION#2002-0999-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

October 18 & November 18, 2002.

DECISION

This union grievance is about holiday compensation for full-time, classified employees who were designated to provide essential or emergency services during the most recent OPSEU strike. The work stoppage lasted approximately eight weeks and spanned two holidays: Good Friday and Easter Monday. There is no dispute about the component of compensation that is payment for work done on a holiday. Employees who worked on such a day were paid for their time, at twice the normal rate of pay, as the parties agree they should have been. The dispute is about the other component of holiday compensation: the one flowing more directly from the holiday itself and not based upon work performed that day.

In this award, I consider the general rules which determine the application of the 1999-2001 collective agreement to employees performing essential and emergency services during the work stoppage, leaving for later consideration how those rules apply to the specific provisions in the agreement relating to holidays.

I

The union contends all classified employees designated as essential or emergency, regardless of whether they worked on Good Friday or Easter Monday, are entitled to compensation, in the form of a day’s pay or a paid day off, in recognition of each of these days. For each holiday, some classified employees providing essential or emergency services received a full day’s pay, but others were paid for only part of a day, and still others derived no benefit at all from the holiday.

The employer’s treatment of employees is best described by dividing them into three broad categories. The first is comprised of essential employees who continued to work their full, pre-strikes hours during the two-week pay period which included a holiday. The treatment of these employees can be illustrated by reference to Good Friday. It fell on March 29, at the end of a pay period. Employees working their regular hours throughout this period got a day’s pay in recognition of the holiday, without reference to whether they worked that day. For example, an employee, who had worked an eight-hour day before the strike, received eight hours’ vacation pay for Good Friday, if he or she worked eight hours on each of the nine days preceding the holiday, for a total of 72 hours in the pay period. The employer concedes these employees were entitled to compensation in recognition of the holiday.

As to employees in the other two categories, the employer asserts they were not entitled to compensation and all payments made were gratuitous. The second category is comprised of essential employees who worked less than their regular hours during a pay period with a holiday. They had their holiday pay pro-rated. For example, an employee, who had worked an eight-hour day before the strike, or 72 hours over nine days, received four hours’ holiday pay for Good Friday, if he or she worked 36 hours in the nine days preceding the holiday.

Emergency employees constitute the third category. Their entitlement to holiday pay was determined by reference to the number of hours worked during the four days preceding the holiday and the four following it, not by reference to total hours worked during a pay period. For example, an employee, who before the strike worked eight hours a day from Monday to Friday, was paid for eight hours for each holiday, if he or she worked eight hours on the four days preceding Good Friday and on the four days following Easter Monday. If the same employee had worked four hours a day throughout these eight qualifying days, he or she would have received four hours’ pay in recognition of each holiday.

II

I was referred to the following sections of the Crown Employees Collective Bargaining Act, 1993 (CECBA) dealing with essential and emergency services:

In this part,

“essential services” means services that are necessary to enable the employer to prevent,

(a) danger to life, health or safety,

(b) the destruction or serious deterioration of machinery, equipment or premises,

(d) disruption of the administration of the courts or of legislative drafting

“essential services agreement” means an agreement between the employer and trade union that applies during a strike or lockout and that has,

(a) an essential services part that provides for the use, during a strike or lockout, of employees in the bargaining unit to provide essential services

(b) an emergency services part that provides for the use, during a strike or lockout, of employees in the bargaining unit, in addition to those in clause (a), in emergencies.

(1) During a strike or lock-out, the employer is entitled to use, to provide essential services, such employees in the bargaining unit as are necessary as provided in the essential services part of the essential services agreement. (2) The employer shall notify the employees who, under the essential services part of the essential services agreement, the employer is entitled to use under subsection (1) during a strike or lock-out. (3) Employees who have been notified by the employer or trade union that the employer is entitled to use them under subsection (1) may not strike and may not be locked out.
(1) In an emergency during a strike or lock-out, the employer is entitled to use such employees as the emergency services part of the essential services agreement provides for. (2) Employees who have been notified that the employer is entitled to use them under subsection (1) and wishes to do so may not strike while the employer is so entitled and so wishes. (emphasis added)

Under this statutory framework, the parties executed an agreement, dated September 20, 2001, entitled Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations (the 2002 conditions document). This document contains the following definitions of essential and emergency services:

Essential services shall be determined in accordance with section 30 of CECBA 1993.

Emergencies are those services specified in bargaining unit essential service agreements and any other unforeseen circumstances which call for immediate action that falls with the definition of section 30 of CECBA 1993.

The terms and conditions of employment for employees providing essential and emergency services are governed by article C3a of the conditions document:

All collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply.

With respect to Union dues, the Union can set dues (regular and supplementary) during a strike or lockout for essential and emergency employees who perform work, and the Employer shall remit them, except that the total deduction shall not be in excess of 31.375%.

For employees who are designated and used for essential services the above terms and conditions of employment apply.

For those employees who are used to perform emergency services as provided in the emergency services part of the essential services agreements and as required by the Employer the above terms and conditions of employment apply. After determining that an employee is to be used to perform emergency services work, the above terms and conditions of employment apply.

The collective agreement referenced is the 1999-2001 contract.

III

The application of a collective agreement to emergency employees was considered by this board in two cases arising out of the first OPSEU strike in 1996: (1) OPSEU (Cousins) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 822/96 (Roberts); (2) OPSEU (Burns) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 823/96 (Roberts). At that time, sections 40(4) and 41(3) of CECBA stated that a collective agreement applied to essential and emergency employees “used” during a work stoppage, “unless the employer and trade union agree otherwise.” (These provisions have since been repealed.) In Cousins and Burns the board was called upon to interpret documents which did provide otherwise.

The grievor in Cousins was designated as an emergency employee; her “name appeared on a list of personnel to be called in to replace any essential employees who were away from work” (page 1). She claimed reimbursement for dental expenses incurred by family members on March 7 and 26. On March 20, she was scheduled to work on March 30 and 31 and April 1, 2, and 5. The union contended the grievor was entitled throughout the strike to dental benefits, under the expired collective agreement, because she had been designated to perform emergency services. According to the employer, her entitlement was limited to dental work done on days she reported for duty. Vice-Chair Roberts rejected both of these arguments as unsupported by the wording of the applicable conditions document, dated January 11, 1996.

He relied upon the third paragraph in article C1 of the 1996 document which is identical to the fourth paragraph in article C3a of the 2002 version quoted above. Mr. Roberts wrote:

This wording did not say that once an employee actually commenced the performance of emergency services work, he or she would be covered by the collective agreement. Instead, it stated that “the collective agreement will apply” after “determining that an employee is to be used to perform emergency services work.” This made the “key” to application of the collective agreement the date upon which the employer actually “determined” to use an employee in this way.

In my opinion, the date upon which the employer “determined” that the grievor would be used to perform emergency services work was the date upon which she was scheduled to work during the strike, i.e., March 20, 1996. Prior to that date, there was too much uncertainty. The grievor was just one among a number of employees deemed qualified to perform such work. She might never have been called upon to work during the strike. Once the grievor was scheduled to work, however, all uncertainty came to an end. The employer had “determined” to use the grievor to perform emergency services work within the meaning of the “Conditions” agreement. From that date until the completion of performance of the work, the provisions of the collective agreement -- including the dental benefit plan -- applied to the grievor.

This means that when dental services were provided to the grievor's husband, Robert, on March 26, 1996, the grievor was covered by the benefit plans included in the collective agreement. When dental services were provided to her son, Aaron, on March 7, 1996, however, the grievor was not covered. (pages 4 and 5; emphasis added)

In short, the conditions document was interpreted to mean that entitlement to dental benefits began when an employee was scheduled to work and ended when all scheduled work was finished.

The grievor in Burns was a correctional officer. Officers at each institution were divided into two groups, with essential services being provided by one group for the first period of two weeks, then by the other group for the next two weeks, and so on. During any two-week period when a particular group of employees was not providing essential services, they could be called upon in an emergency. The grievor visited his dentist on the second day of the strike, when he was available to perform emergency services but not required to provide essential services. His entitlement to be reimbursed for dental benefits was determined by reference to the essential services umbrella agreement for the correctional services bargaining unit. (The decision makes no mention of the conditions document considered in Cousins.) The relevant provisions of the umbrella agreement stated:

All provisions of the collective agreement shall apply to bargaining unit employees designated to provide emergency services under this agreement, or as agreed to by the parties at the central table.

21 (c) It is understood that employees are only deemed to be essential for the rotational period during which they are required to work. It is also understood that at all other times they are deemed to be emergency service personnel.

Applying these sections to the facts at before him, Mr. Roberts wrote:

Equating “designated” under section 6 of the emergency services agreement with “deemed” under section 21 (c) of the umbrella agreement would lead to the conclusion that the parties intended the collective agreement to apply to all correctional officers in the bargaining unit throughout the entire period of the strike. Throughout this period, correctional officers were deemed under the umbrella agreement to be either essential workers or emergency services personnel. According to the submissions of the union, the collective agreement would apply to them regardless of which they were deemed to be. It would not matter if a correctional officer were ever called in to perform emergency services work. It would not matter if the correctional officer spent all of his non-essential rotation of the picket line. To ascribe so far-reaching an intention to the parties--and in particular, the employer--would be unreasonable.

It seems to me that the more reasonable interpretation of “designated” under section 6 of the emergency services agreement would be to equate it to “scheduled” or “called in” by the employer to provide emergency service. Scheduling or calling in an employee for this purpose would seem to be an appropriate point at which to trigger application of the collective agreement to an otherwise-striking employee. It is then that the rights and responsibilities of the employer and employee under the emergency services agreement crystallize. The employer expects to receive emergency services at a specific time from a specific employee. The employee is required to provide them. In return, the employee reasonably expects to receive the benefit of the collective agreement.

In the present case, the grievor incurred his dental expense on the day after the commencement of the strike. At that time, he was deemed to be emergency services personnel under the umbrella agreement but had not been scheduled or called in by the employer to perform emergency services. ... Accordingly, the collective agreement did not apply to the grievor at the time of his dental expense, and he cannot claim reimbursement under the dental benefit plan of the agreement. (pages 3 and 4; emphasis)

In other words, the grievor’s claim for reimbursement was denied because his dental expenses had been incurred before he had been called in or scheduled to work as an emergency employee.

IV

This section of my award addresses the application of the 1999-2001 collective agreement to emergency employees; the entitlement of essential employees is considered in the next section. As the same paragraph dealing with emergency employees appears in both the 1996 document and the one for 2002, I begin with the meaning of this paragraph, viewed in the context of the earlier document, and then consider the implications of changes made elsewhere in the later document. The paragraph is repeated here for ease of reference:

Counsel on each side argued the two sentences in this paragraph deal with mutually exclusive subjects. According to union counsel, the second sentence is about emergency workers identified through a formal designation process and the first sentence about those selected in some other way. Employer counsel contends the first sentence deals with services specifically identified in an emergency services agreement and the second with other emergency services. As neither sentence makes any mention of a particular type of service or a particular mode of selection, I conclude both of these interpretations are dubious.

Both are also at odds with the ruling in Cousins. Vice-Chair Roberts drew no distinction between types of emergency services or methods of selecting emergency workers, merely noting the grievor’s name was on a list of people to be used as replacements. He read the second sentence as imposing a temporal limitation on the entitlement of emergency employees under a collective agreement. In other words, he treated both sentences as governing all emergency employees, with the first saying the collective agreement applied to them, and the second modifying the first by adding a time limit. In my view, this is the most reasonable interpretation of how the 1996 document dealt with emergency services.

Does the Cousins decision offer any guidance about the proper treatment of emergency workers during the 2002 strike? Article C3a of the 2002 document omits one provision found in the 1996 version and contains two others not found there. All relevant parts of the later document are quoted in the second section of this award. The corresponding paragraphs from the earlier one state:

For employees who are on strike, the collective agreement applies.

For employees who are designated and used for essential services the above terms and conditions of employment apply.

Counsel for the union notes the first paragraph, about “employees who are on strike”, is omitted from the 2002 conditions document. The significance of the omission depends upon what this clause meant in 1996. The overall structure of the earlier document is not hard to discern. Article C1 has three paragraphs, each dealing with a different category of employees: the first addresses those on strike, who have not been designated to provide essential or emergency services; the second concerns essential workers and the third emergency workers. The first paragraph makes the obvious point that the collective agreement does not apply to employees who are not designated to provide essential or emergency services. As this paragraph is not about essential or emergency workers, its omission from the 2002 document has no impact on how the collective agreement applies to them.

The first two paragraphs of article C3a of the 2002 document have no counterpart in the one for 1996. For ease of reference, these provisions are repeated here:

All collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply.

(emphasis added)

Emphasizing the words “who perform work” in the second paragraph, union counsel notes there is no analogous language elsewhere in article C3a. In my view, this observation does not assist in construing the remaining paragraphs. The second paragraph allows the union to impose a levy on essential and emergency workers, the only employees who receive wages from the employer during a strike, in order to raise money for distribution to strikers who have forgone all such wage payments. Once the decision to have such a levy has been made, logic dictates that it apply only to those “who perform work.” Even if the document was not explicit on this point, one would infer such a levy applies exclusively to working employees. For this reason, I conclude the insertion of the phrase “who perform work” in the second paragraph has no real significance and does not suggest the parties intended paragraphs lacking this phrase to include non-working employees.

Union counsel also relies upon the words “without interruption” in the first paragraph of article C3a. These words first appeared in an OLRB order, dated January 12, 1999, issued because the parties where unable to agree on how the collective expiring in 1998 would apply during a work stoppage, if one occurred during negotiations for its renewal. (By this time, CECBA no longer dealt with the application of a collective agreement during a strike or lockout.) The OLRB order stated that “all collective agreement provisions apply to essential workers without interruption”, save for Appendix 9 which was later determined not to apply. In a later decision, dated January 27, 1999, the OLRB indicated the term “essential” had been used to include “emergency” (paragraphs 6 and 10). The parties subsequently executed a conditions document, dated February 4, 1999, containing terms which are identical, for present purposes, to article C3a of the 2002 document. (The only difference is that the later document mentions Appendix 18 as well as Appendix 9.)

The most obvious purpose of the first paragraph of article C3a is to indicate that the entire collective agreement, with the sole exception of two appendices, applies to employees providing essential or emergency services. The accomplishment of this purpose did not require inserting the words “without interruption.” Counsel contends these two words were inserted to ensure an employee designated to provide essential or emergency services was covered by the collective agreement throughout a work stoppage. According to this argument, the added words were meant to reverse the ruling in Cousins that a collective agreement did not apply to an emergency employee before work was scheduled or after it was completed.

The obvious counter argument is that the paragraph about emergency workers, upon which the Cousins decision was based, was carried over in its entirety from 1996 to 2002. It is now the fourth paragraph of article C3a. Vice-Chair Roberts construed the second sentence in this paragraph as serving the sole purpose of imposing a temporal limitation on the first, which says the collective agreement applies to emergency employees. If the phrase “without interruption” in the opening paragraph of article C3a is read to say they are covered by the collective agreement for the duration of a work stoppage, the first paragraph directly contradicts the fourth as interpreted in Cousins. Such a contradiction would produce an ambiguity about whether the temporal limitation from 1996 survived in 2002. The clearest way to over-ride the ruling in Cousins would have been to delete or modify the second sentence in the paragraph about emergency workers. This was not done.

Counsel for the employer contends emergency employees are entitled to the benefit of the collective agreement only when working because they are on strike the rest of the time. This argument is based upon s. 41(2) of CECBA repeated below for ease of reference:

Employees who have been notified that the employer is entitled to use them under subsection (1) and wishes to do so may not strike while the employer is so entitled and so wishes. (emphasis added)

Counsel reads this prohibition against emergency employees going on strike as applying only when they are performing essential services. The same construction was adopted by the OLRB in OPSEU and Crown in Right of Ontario [1995] O.L.R.B. 735 at paragraph 22. I note this interpretation pays no heed to the words “who have been notified.” This phrase makes the right to strike depend, not on what employees are doing, but rather on what notification they have received. I need not dwell upon the proper interpretation of this section, because CECBA no longer governs the application of a collective agreement during a strike, leaving this matter to be determined by the parties. Their determination is embodied in the 2002 conditions document and my task is to interpret article C3a of that document.

The foregoing analysis leads me to conclude Cousins continues to embody the rules determining when emergency employees enjoy the benefit of the collective agreement. The decision in that case set out the rules applying in 1996. The same rules continued to apply in 2002, because the current conditions document is ambiguous as to whether they have been changed.

V

I turn now to consider how the collective agreement applies to employees designated to perform essential services.

Does the Burns decision offer any guidance on this subject? The grievor in that case rotated between being available to work as an emergency employee in one two-week period and working as an essential employee in the next. He belonged to the group of employees slated to begin performing essential services in the third week of the strike. When he went to the dentist on the second day of the work stoppage, he was slated to provide essential services in less than two weeks. The effect of the decision in Burns was to deny him reimbursement for a dental expense incurred in the interval between the scheduling and performance of essential work, even though he would have been reimbursed for a similar expense incurred between the scheduling and performance of emergency work. Vice-Chair Roberts analysis in Burns acknowledges the grievor’s role as an essential employee, but makes no mention of the dental appointment occurring while he was scheduled to do essential work. As well as glossing over this fact, the Burns decision does not cite any provision, from either the conditions document or the corrections umbrella agreement, specifying how the collective agreement applies to employees performing essential services. The decision is based exclusively upon provisions in the umbrella agreement dealing with emergency employees. For these reasons, I conclude the ruling in Burns provides no authoritative guidance as to the proper treatment of essential employees, even in the context of the 1996 strike.

The treatment of essential employees in 2002 is governed by the first and third paragraphs of article C3a. The third paragraph, dealing exclusively with essential workers, contains wording significantly different than the fourth paragraph, dealing exclusively with emergency workers. The first, third and fourth paragraphs are repeated here for ease of reference:

All collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply.

For employees who are designated and used for essential services the above terms and conditions or employment apply.

The word “after” in the fourth paragraph has no analogue in the second. This is the very word that led Vice-Chair Roberts in Cousins to conclude there was a temporal limitation on the application of the collective agreement to emergency workers. He read “determining” to mean scheduling and held that the collective agreement applied only after an employee had been scheduled to work. The omission of “after” in the third paragraph suggests essential workers are not subject to the same temporal limitation as those performing emergency services. This interpretation is reinforced by the words “without interruption” in the opening paragraph.

Counsel for the union contended the word “and” in the second paragraph, about essential employees, should be treated as disjunctive rather than conjunctive. I reject this suggestion that “and” means “or”. The second paragraph creates two conditions for coverage under the collective agreement. To have the benefit of the agreement, an employee must be designated to do essential work and actually do some. The collective agreement has no application to an employee who is designated to perform essential services but who does no such work during a work stoppage.

For an employee who is designated to provide essential services and does so, when does he or she begin to receive the protection of the collective agreement and when does that protection cease? The absence of any temporal limitation in the third paragraph of article C3a, together with the phrase “without interruption” in the first, indicate that such an employee is covered by the collective agreement from the first day of the work stoppage to the last.

VI

My conclusions about article C3a of the 2002 conditions can be briefly summarized:

An emergency worker was covered by the collective agreement in the interval between being scheduled to work and completing all scheduled work. The collective agreement did not apply to such an employee before being scheduled to work or after all scheduled work had been completed.
The collective agreement has no application to an employee who was designated to provide essential services but performed no such work during the strike.
An employee who was designated to perform essential services, and who did so, was covered by the collective agreement for the entire duration of the strike.

The collective agreement applied differently to emergency workers than to essential workers, even though the former sometimes were scheduled for duty in much the same way as were the latter. This differential treatment is a product of the conditions document which recognizes two categories of employees and uses very different language to describe the application of the collective agreement to one than to the other.

Remaining to be determined is what these general conclusions about collective agreement coverage imply about entitlement to holiday compensation.

Issued at Toronto this 4th day of December, 2002.

Ontario Public Service Employees Union v. The Crown in Right of Ontario (Management Board Secretariat), 2002 CanLII 45821

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Grievor

DECISION

I

II

III

IV

V

VI