GSB# 2005-2410, 2005-2411, 2005-2412, 2005-2529, 2005-2530, 2005-2531, 2005-2532, 2005-2533, 2005-2642, 2005-2644, 2005-2645, 2005-2653

UNION# 2005-0499-0101, OLB601/05, OLB603/05, OLB600/05, OLB602/05, 2005-0499-0102, OLB606/05, OLB608/05, OLB596/05, OLB604/05, OLB607/05, OLB621/05

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gagne et al.)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Val Patrick Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

June 27, 2007.

Decision

The following twelve individual grievances came before the Board for arbitration:

2005-2410 Gagne, Jeff

2005-2411 Bergeron, Troy

2005-2412 Hay, Chris

2005-2529 DuPerron, Matt

2005-2530 Watson, Cory

2005-2531 Koclejda, Roman

2005-2532 Rambeau, Michael

2005-2533 Harkins, Mike

2005-2642 Ross, Nelson

2005-2644 Kotchiev, Tom

2005-2645 McEvoy, Todd

2005-2653 Seid, Shariff

Although all of the grievances are not worded identically, the parties agreed that in essence they all claim that the employer has failed to accord seasonal status to the grievors in accordance with s. 4-4.1 of Appendix 4 to the collective agreement.

The parties agreed that the dispute is about the interpretation and application of s.4-4.1, and the grievances were argued solely on the basis of the following agreed statement of facts.

AGREED STATEMENT OF FACTS

The Union and the Employer (collectively, “The Parties”) agree to the following facts for the purpose of this Arbitration. The Parties agree that these facts are agreed upon for the purpose of this Arbitration only and without prejudice or precedent to any other matter and may be supplemented by either party by viva voce evidence.

1The Parties have a long-term bargaining relationship and have entered into several collective agreements. The Parties had a collective agreement covering the period of April 1, 2002 through March 31, 2005 (hereinafter, “the prior collective agreement”).

2In January 2005, the Parties commenced bargaining for the renewal of the prior collective agreement and ultimately entered into a collective agreement covering the period of April 1, 2005 through March 31, 2009 (hereinafter, “the renewed collective agreement”).

3This case involves the application of the language set out in Section 4 of Appendix 4 of the renewed collective agreement and specifically 4-4.1. Appendix 4 is applicable only to seasonal employees. Seasonal employees are a category of employees between the full time and casual categories and are used in the Employer’s Logistics Division.

4The language in section 4-4.1 of Appendix 4 was amended in the renewed collective agreement. The language set out in the prior collective agreement, is attached at Tab A. Under that language it was often the case that casual employees were unable to obtain the more than 14 consecutive weeks of being scheduled to work 35 hours or more per week, exclusive of overtime, required to attain seasonal status, with the consequence that their “hours-worked banks” would be “re-set to zero”. The language set out in the renewed collective agreement is attached at Tab B.

5The Union was in a legal strike position as of July 28, 2005. The Memorandum of Agreement (MoA) concluding negotiations was signed by the Parties on July 27, 2005 and is attached at Tab C. The MoA was ratified by the Union on August 11, 2005 and by the Employer on August 17, 2005. There were no discussions between the Parties about how hours worked prior to August 17, 2005 were to be treated for purposes of the new language until after the fact at which time the disagreement that is the subject of these grievances became apparent to both Parties.

(attachments omitted)

Section 4-4.1 of Appendix 4 appeared in the prior collective agreement (“old collective agreement”) as follows:

SECTION 4 – SEASONAL STATUS DEFINED

4-4.1 Casual employees who are scheduled or work for more than fourteen (14) consecutive weeks at thirty-five (35) hours or more per week shall thereafter be considered to be a “seasonal employee”. It is understood that the thirty-five (35) hours does not include overtime hours.

In the renewed collective agreement (“new collective agreement”) this provision was amended to read as follows:

4-4.1 Casual employees who work for seven hundred (700) hours or more, exclusive or overtime, in any consecutive twenty six (26) week period shall thereafter be considered to be seasonal employees.

Determination of the instant grievances requires the interpretation and application of this latter provision in the new collective agreement, which has a duration clause of April 1, 2005 to March 31, 2009.

The dispute between the parties is as follows. It is the union’s position that in applying s.4-4.1 in the new collective agreement to a casual employee, i.e. in determining whether he/she had worked 700 hours or more in any consecutive twenty six week period, all hours previously worked by an employee prior to the coming into effect of the new collective agreement should be taken into account.

The employer disagrees. Counsel points out that the terms settling the new agreement were ratified by the employer on August 17, 2005. Therefore, that was the date the new collective agreement came into effect. On that basis, the employer takes the position that in applying the new formula, only hours worked after August 17, 2005, should count. Counsel submits that with the coming into effect of the new formula on August 17, 2005, as of that date the hours worked bank of casual employees for purposes of achieving seasonal status, would be re-set to zero. Only hours worked subsequently would go towards satisfying the requirements of the new formula.

The parties have agreed that during negotiations there was no discussion whatsoever as to how hours worked by casual employees prior to August 17, 2005 should be treated. Counsel for the union pointed out that the Memorandum of Agreement between the parties settling the terms of the new collective agreement included a provision which explicitly provided that the negotiated wage increases would be effective on specified dates over the term of the agreement. They also explicitly agreed that provisions allowing the movement of warehouse workers 4 to the final steps of the wage progression will be “effective upon ratification of this collective agreement”. Similarly, the parties explicitly provided that changes to benefits will become effective “on the 1st of the month following ratification”. They executed a letter of agreement relating to contracting out and provided that it will be in force and effect for the term of the collective agreement. Thus, union counsel submits that where the parties intended to limit the time period when any negotiated terms were to take effect or apply, they explicitly stated so. He argues that the amended s. 4-4.1 does not stipulate any time limits for its application. The only change from the old s. 4-4.1 to the new s.4-4.1 was that the new provision stipulated a different formula for achieving seasonal status. Counsel submits that to impose a time limit that the provision will only be effective from the date of ratification would amount to adding to the collective agreement. Counsel referred me to the often quoted paragraph in Re Tung-Sol of Canada Ltd., (1964) 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville) as follows:

Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee’s seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee’s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.

Counsel for the employer acknowledged that the Memorandum of Agreement contained several provisions explicitly providing for particular effective dates. However, he argued that as a matter of law terms of a collective agreement have no retroactive application unless it is specifically provided for. He relied on Re Penick Canada Ltd., (1966) 1966 CanLII 811 (CA LA), 17 L.A.C. 296 (Weatherill). In that case the parties entered into a Memorandum of Agreement on October 1, 1965, following a legal strike. The agreement was ratified by the employees on October 3, 1965. On the basis of this de facto agreement, and before the execution of the collective agreement, striking employees were incrementally recalled to work. The grievance claimed that the recall should have been done in conformity with the provisions in the collective agreement requiring that plant seniority shall govern where other factors are equal when filling vacancies. The union relied on the duration clause to argue that this provision, which had not changed from the old to the new collective agreement, remained in force uninterrupted, including during the time the employees were on strike. The Board noted that there was no explicit agreement with respect to the order in which employees would be called to work or that the provision in question would be applied, and went on to state as follows, at p. 300:

The purposes of the duration clause would appear to be several, and to include (a) the establishment of continuity as between successive agreements: (b) the establishment of equally-spaced termination dates and hence of equally-spaced periods of negotiation: and (c) the provision for retroactivity of at least some of the provisions of the agreement. It is clear that the agreement was meant to provide for retroactivity of the negotiated wage increase. (For a somewhat analogous situation where an employer was required to pay increased overtime rates on a retroactive basis, see Re U.A.W. and Duplate Canada Ltd. (1952), 5 L.A.C 1779.) It cannot, however, be said that the effect of the duration clause is to render the collective agreement retroactive for all purposes. While it is clear enough that the provision was intended to make “monetary” items retroactive, it would require the clearest language to transform the legal effect of things done by the parties during the time when there was in fact no collective agreement in effect. To conclude, for instance, that, by virtue of the duration clause, the collective agreement should be considered as being in effect during the time employees were on strike, would necessarily involve the conclusion that the strike was unlawful and would subject the union to a possible liability in damages to the company for its loss of production. It would be impossible, however, in the absence of plain language to such effect, to separate this absurd conclusion from the conclusion that other “non-monetary” provisions of the collective agreement may be considered as being in effect during the period prior to October 13th. There is no such language in the collective agreement.

Employer counsel referred me also to Re MacMillan Bloedel Industries Ltd. (1974) 1974 CanLII 2289 (BC LA), 5 L.A.C. (2d) 337 B.C. Labour Relations Board decision. There the employees were on strike from August 28, 1973. When the strike ended on October 10th employees returned to work. However, the renewal collective agreement was not executed until December 20, 2973. It was clear that at the time the employees returned to work on October 10th, there was no collective agreement in force. The issue was whether the seniority provisions in the renewal agreement had retroactive application to govern the “termination” of the grievor which had occurred prior to the execution of the collective agreement.

The Board referred to Re Penick Canada Ltd. (supra) and wrote:

The rationale for that view was further elaborated in Re C.U.P.E., Local 4, and Public Utilities Com’n of the City of London (1965), 1965 CanLII 1039 (ON LA), 16 L.A.C. 182 (Arthurs), at p. 184: “Such a result would accord with common sense. It is difficult to envisage how either party could be expected to comply with obligations not yet assumed – indeed perhaps not yet in contemplation …”. Certainly, then, the new wage rates would be applicable to work actually done between July 1st and December 20th. However, in the absence of very explicit wording, this kind of retroactivity clause does not serve to make illegal conduct which was perfectly legal at the time it was happening. The legality of the Union’s strike in September, in the absence of a collective agreement, is not affected by the wording of an agreement signed in December. By the same token, in the absence of a new collective agreement (which must be in writing under the Code Not just a verbal arrangement), the Employer was not bound by the seniority provision in deciding which employees should be retained and which should be let go, from August 28th to December 20th. For that reason, Ranger cannot lodge a personal grievance under the current collective agreement regarding his “termination” in September and November.

In Re Newfoundland and Labour Health Boards Association, (2005) 2005 CanLII 94104 (NL LA), 139 L.A.C. (4th) 406 (Browne), a renewal collective agreement provided for a longer period of service-driven benefits during maternity leave, than under the expired agreement. The parties stated the issue to be decided as follows:

After July 22, 2002, were RN’s who were granted maternity leave under the 1999 Collective Agreement and who were still on maternity leave when the 2002 Collective Agreement became effective, entitled to maternity leave benefits as stated in the 1999 Collective (maximum of 33 weeks) or as stated in the 2002 Collective Agreement (maximum of 52 weeks)?

At. P. 418-419 the Board held:

The Board is satisfied that all those who were on maternity leave, pursuant to the 1999 Collective Agreement, prior to July 22, 2002, the date the 2002 Collective Agreement came into force, were entitled to a maximum thirty-three weeks of leave pursuant to Article 20.01(d) of the 1999 Collective Agreement. This was not a vested right, which is a term reserved for pension benefits and the like, but was nonetheless an entitlement of those who commenced maternity leave under Article 20 in the 1999 Collective Agreement.

On July 22, 2002, when the 2002 Collective Agreement came into force, those employees who had already commenced maternity leave pursuant to Article 20.01(d) under the 1999 Collective Agreement could continue to receive the benefit prescribed therein. The entitlement was not extinguished when the July 22, 2002, Collective Agreement came into force.

However, it does not follow that Article 20.06(d) of the July 22, 2002, Collective Agreement applied to those employees who had already commenced maternity leave pursuant to Article 20.01(d) of the 1999 Collective Agreement. The language of the agreement does not support such a proposition. Specifically, Article 20.01(a) of the 2002 Collective Agreement states:

An employee shall be eligible for and shall be permitted to commence maternity leave at the beginning of the 6th month of pregnancy. Permission to commence maternity leave shall not be unreasonably denied.

Based on this language which the parties chose, those employees who had already commenced maternity leave under the 1999 Collective agreement could not re-commence maternity leave under Article 21.01(a) when the July 22, 2002, Collective Agreement came into force. Furthermore, the parties addressed retroactivity in Article 49 of the July 22, 2002, Collective Agreement and decided that salaries were to be retroactive to July 1, 2001. If the parties had intended that the maternity leave benefit under Article 20.01(d) was to be increased from thirty-three (33) weeks maximum of fifty-two (52) weeks maximum for all those who had already commenced maternity leave when the new collective agreement came into force on July 22, 2002, the parties should have so stated in Article 21 or in Article 49, the retroactivity clause.

In short, there is no language in the July 22, 2002, Collective Agreement to confer an additional benefit on those already on maternity leave when the new agreement came into force on July 22, 2002. Furthermore there is n language in the 1999 Collective Agreement to address such a circumstance. If the parties had intended to confer any additional benefit to employees on maternity leave, that intention should have been clearly stated in language of the July 22, 2002, Collective Agreement. For reasons best known to themselves the parties chose not to do this. Without explicit language this Board of Arbitration has no jurisdiction to extend such a benefit from the thirty-three (33) week maximum to the fifty-two (52) week maximum for employees whose grievance is the subject of this arbitration.

Having considered the jurisprudence and the submissions of the parties, I have concluded that the position of neither party is supportable. I agree with the authorities that stand for the proposition that merely because of the duration clause, not all changes negotiated in a renewal agreement are made retroactive to the first day of the term of the agreement. As I have reviewed, where the parties intended retroactive application, they have explicitly provided for such retroactivity. Improved terms negotiated in a renewal collective agreement are not necessarily retroactive merely because of the duration clause. For that reason, the position espoused by the union fails.

However, the law does not support the position advocated by the employer either. It must be noted that when the grievors worked the hours prior to the date of ratification of the new agreement, they were governed by a collective agreement provision which entitled them to seasonal status provided they met certain requirements. That was the old s. 4-4.1. Under that provision, they worked under the expectation that they were entitled to achieve seasonal status if they were scheduled or work for more than 14 consecutive weeks at 35 hours or more per week. If the employer’s interpretation is correct, if an employee had an ongoing streak of 13 consecutive weeks of more than 35 weeks as of the date the new collective agreement into effect (August 17, 2005), and therefore was only one week short of achieving seasonal status, he/she abruptly has the 13 week streak wiped off as of August 17, 2005, and finds his hours worked bank re-set at zero. Under the employer’s interpretation, in order to achieve seasonal status, he/she has to start all over and satisfy the new formula in the new agreement by working for 700 hours or more in any 26 week period subsequent to August 17, 2005. The 13 week streak he/she had going not only comes to an end, all of those hours worked are wiped out and do not benefit him/her under the old collective agreement, or the new collective agreement.

I agree with employer counsel that what is being wiped out is not “seniority” and therefore the principle in Re Tung-Sol has no application. Nevertheless, seasonal status was a benefit earned by employees through hours of work. That was their expectation and their entitlement at the time they were working those hours. Clear language is required in the new agreement before one can reasonably reach the conclusion that the parties would have intended that those hours would be wiped out after the fact. There is no such language to be found in the collective agreement.

The circumstances here are analogous to those in Re Newfoundland and Labour Health Boards Association (supra). There it was held that employees who had commenced maternity leave under the terms of the expired collective agreement, were not entitled to the enhanced benefit level in the renewal agreement. However, the Board also held that such employees were entitled to continue receiving the benefit level under the old collective agreement, even after the coming into effect of the renewal agreement. In other words, their entitlement under the old agreement was not wiped out by the coming into effect of the new collective agreement.

Employer counsel quite correctly submitted that I had no equitable jurisdiction to do what I think is fair. However, the fact is that s. 4-4.1 has no language providing any guidance as to how prior hours worked are to be treated. Nor is there any extrinsic evidence to assist in that regard. In the circumstance, I am entitled to assume that if the parties intended the drastic consequences of suddenly wiping out hours accumulated under the old collective agreement, they would have so provided. In the absence of clear language, in this case in the absence of any language, it is not reasonable to infer such a drastic result.

Therefore, I have concluded that the reasonable interpretation is that the grievors are not entitled to achieve seasonal status by an application of the new formula to hours worked prior to the coming into effect of the new collective agreement. However, I disagree that those hours are wiped out and count for nothing. The more reasonable interpretation is that the grievors are entitled to achieve seasonal status if they meet the requirements of the old formula by being scheduled to work or working more than 35 hours for 14 or more consecutive weeks, even if some of those weeks were worked following the coming into effect of the new collective agreement on August 17, 2007.

The grievances claim that the grievors should be granted seasonal status based on hours worked prior to the coming into effect of the new collective agreement. I have concluded that the union’s position is not sustainable. Accordingly, the grievances fail, and are hereby dismissed.