Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Government Services), 2011 CanLII 36505

GSB#2010-0405

UNION#2010-0999-0010

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry and Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

May 10, 2011.

DECISION

1The Employer has raised a second preliminary motion to dismiss all of the grievances in this matter, asserting that the Union agreed not to pursue such grievances in a Memorandum of Agreement (MOA) dated January 26, 2010. This Decision addresses the Employer’s motion.

Facts

2On March 11, 2010, the Union filed a policy grievance asserting that the Employer violated Appendix COR7 of the collective agreement in regard to the payment of absenteeism target incentives. A number of individual grievances were also filed as well. The Union’s particulars, which the parties accept as true for the purposes of this motion, provide as follows in relevant part:

3. OPSEU grieves that the manner in which the employer has implemented Appendix COR7 to the Correctional Bargaining Unit collective agreement is in violation of the collective agreement.

4. The Union claims that by … failing to properly calculate incentive pay entitlements for classified Correctional Officer (CO) 2s out of the workplace on Workplace Safety and Insurance Board (WSIB) leave, short term sick (STS) leave, long-term income protection (LTIP), maternity/parental leave, bereavement leave, union leave, and while on an Acting assignment, the Employer has breached the collective agreement.

5. On various dates throughout the first half of 2010, COs and YSOs were paid their incentive pay in accordance with Appendix COR7. However, some employees …did not receive their full entitlements to this pay. …. This grievance relates to the eight categories of employees mentioned above … whose incentive pay was improperly calculated.

6. The Employer failed to include time spent out of the workplace on WSIB leave as part of the hours worked for the purposes of calculating entitlement for individuals who were absent due to WSIB during the year.

7. The Employer failed to include time spent out of the workplace on STS leave as part of the hours worked for the purposes of calculating entitlement for individuals who were absent due to illness during the year.

8. The Employer failed to include time spend out of the workplace on LTIP leave as part of the hours worked for the purposes of calculating entitlement for individuals who were absent due to LTIP during the year.

9. The Employer failed to include time spent out of the workplace on maternity/paternity leave as part of the hours worked for the purposes of calculating entitlement for individuals who were absent on such leave during the year.

10. The Employer failed to include time spent out of the workplace on union leave as a part of the hours worked for purposes of calculating entitlement for individuals who were absent on such leave during the year.

11. The Employer failed to include time spent out of the workplace on bereavement leave as part of the hours worked for the purposes of calculating entitlement for individuals who were absent on such leave during the year.

12. The Employer failed to include time spent out on an acting assignment, such as an Acting OM16 assignment, as part of the hours worked for the purposes of calculating entitlement for individuals who had such an assignment during the year.

Appendix COR7 provides, in pertinent part, as follows:

ABSENTEEISM TARGET INCENTIVES

5. If the average annual absences for Correctional Officers and Youth Workers in the Regular Services is less than or equal to the absenteeism targets set out in article COR 15.1(a) through COR 15.1(d) and COR 18.1(a) through COR 18.1(d), the Employer shall provide lump sum payments to regular Correctional Officers and regular Youth Workers as follows:

(a) In the first year of the collective agreement:

i. 2% of the employee’s straight time hourly rate as of December 31, 2009, for all hours worked in the period from the date of ratification to December 31, 2009, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(a) and COR 18.1(a); or

ii. 3% of the employee’s straight time hourly rate as of December 31, 2009, for all hours worked in the period from the date of ratification to December 31, 2009, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(b) and COR 18.1(b); or

iii. 4% of the employee’s straight time hourly rate as of December 31, 2009, for all hours worked in the period from the date of ratification to December 31, 2009, if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(c) and COR 18.1(c); or

iv. 5% of the employee’s straight time hourly rate as of December 31, 2009 for all hours worked in the period form the date of ratification to December 31, 2009 if the average annual absenteeism is less than or equal to the absenteeism target set out in article COR 15.1(d) and COR 18.1(d).

b. In the second year of the collective agreement ….

c. In the third year of the collective agreement….

d. In the fourth year of the collective agreement.

COR 15 – REGULAR CORRECTIONAL OFFICER AND YOUTH WORKER ABSENTEEISM TARGETS

COR 15.1 a) In the event that the average absences from the date of ratification to December 31, 2009 due to non-work related illness or injury for Correctional Officers and Youth Workers in the Regular Service is greater than one hundred and ninety-two (192) hours in the first calendar year of the collective agreement to be pro-rated to reflect that the period from the date of ratification to December 31, 2009 is less than one (1) calendar year), Article COR8.2.3 [Overtime] shall be null and void and Article COR 8.2.3A shall be implemented effective January 1, 2010 until December 10, 2010. …

COR 15.2 As soon as practical at the end of each quarter (within approximately thirty (30) days thereafter), the Union will be advised of the utilization of sick leave for the purposes of Article COR 15.1. The report will reflect absences for employees who are hired or terminated in the calendar year, or who work less than full-time hours, on a pro-rated basis.

3On January 26, 2010, the parties entered into a “Memorandum of Agreement”. This agreement states as follows:

Whereas there is a dispute between the parties as to whether full year LTIP absences ought to be included in the calculations for the attendance targets found in COR 15.1 and COR 18.1; and,

Whereas the parties wish to report expeditiously on whether the Year 1 targets were met;

The parties agree to the following:

1. The Employer agrees that the Year 1 report shall include those employees who were absent from the workplace on approved LTIP for the entire calendar year of 2009, for the purpose of determining whether or not the Year 1 attendance targets were met.

2. On a go-forward basis, the parties agree that for all subsequent calendar years starting January 1, 2010, those employees who were absent from the workplace on approved LTIP for the entire calendar year shall not be included for the purpose of determining whether or not annual attendance targets have been met.

3. OPSEU agrees not to challenge the Employer’s 2009 data, including but not limited to the method of data collection, or the Year 1 attendance report, calculations, determinations or results, either through union or individual grievances, at the GSB.

4. The Employer undertakes to announce that the Year 1 target of 155 hours (19.4 eight-hour days) was met on January 29, 2010.

On January 29, 2010, pursuant to the above agreement, the Employer sent a memo to “All Regular Correctional Officers” announcing that “the 2009 Absenteeism Target under Articles COR15.1(a) and COR18.1(a) has been achieved.” It continued:

The Final 2009 Attendance Report indicates that the overall prorated average sick leave usage for Regular Correctional Officers and Youth Services Officers was 152.58 hours (19.07 eight-hour days)[emphasis in original] for March 12 - December 31, 2009. The Year One Absenteeism Target (prorated from March 12 – December 31, 2009) was a maximum of 155 hours (19.4 eight-hour days) of sick leave usage.

In accordance with Article COR 8.2.3A, given that the attendance target has been met, Article COR8.2.3 will continue to apply.

Pursuant to Appendix COR7 of the Correctional Unit Bargaining Unit Collective Agreement, Regular Correctional Officers and Youth Services Officers will be issued lump sum bonus payments of 2 per cent of their straight time hour rate as of December 31, 2009 for all hours worked in the period from March 12 – December 31, 2009.

Confirmation of the amount of the bonus will follow shortly.

Position of the Parties

The Employer

4The Employer asserts the January 26, 2010 Memorandum of Agreement explicitly prevents the Union from challenging any and all “determinations or results” made by the Employer that flow from the “2009 data.” It submits that in exchange for the Employer’s agreement to include LTIP absences for 2009 – and thereby ensure that the Year 1 attendance target was met, which meant that absenteeism target incentives would be paid and there would be no changes to overtime – the Union agreed not to challenge “the Employer’s 2009 data, including but not limited to the method of data collection, or the Year 1 attendance report, calculations, determinations or results, either through union or individual grievances, at the GSB.”

5The Employer points to the two “whereas” clauses and submits that there was a dispute between the parties regarding LTIP inclusion in the calculations for the attendance targets, and that parties’ were eager to resolve that issue so that it could be determined whether the attendance targets had been met. So they agreed to include it for 2009, but exclude it thereafter. With that inclusion, the Employer would agree that the 2009 attendance target had been met, which had the effect of triggering absenteeism target incentive payments under Appendix COR7(a)(1) [at 2%], as well as continue overtime under COR8.2.3. The Employer submits that in exchange for these significant benefits, the Union agreed not to challenge anything, including the determinations or results that flowed.

6The Employer contends that under basic principles of contract construction, the Union did not just agree that the target was met under Appendix COR7(a)(1) and would not further be challenged, but agreed not to challenge the “2009 data.” Using the expansive language of “including but not limited to”, the parties stated that the “2009 data” included the “method of data collection, … the Year 1 attendance report, calculations, determinations or results….” The Employer submits that this means all the data for 2009 and the determinations and results which flow from it.

7The Employer further argues that it would be absurd to interpret paragraph 3 to mean that the Union would not grieve that the 2% target had been met, when it explicitly agreed to the 2% target in paragraph 4. Otherwise, it asserts, paragraph 4 becomes irrelevant, yet all language in an agreement must be given meaning. Further, it submits that there was no benefit to this bargain for the Employer other than paragraph 3, and that the Union’s interpretation would nullify the benefit of the bargain to the Employer. With paragraph 3, the Employer submits that it gained finality and stability. It agreed that the target had been met, but that there would be no further challenges. The Employer contends that the Union is now challenging the “determinations and results” by taking issue with the 2009 data that the Employer is using to calculate the “hours worked” by employees. It suggests that this is an attempt by the Union to “have its cake and eat it too.”

8In support of its contentions, the Employer cites to the following cases which enunciate basic principles of contract interpretation: Re South River-Machar Ambulance Services and OPSEU, Local 637(Meunier Grievance) [1998] O.L.A.A. No. 550 (Micus); Re Limen Masonry Ltd. and International Union of Bricklayers and Allied Craftworkers, Local 2 [1999] O.L.R.D. No. 2746 (Lewis); Re University of Calgary and University of Calgary Faculty Assn. (Health care premiums grievance) (2010), 192 L.A.C. (4th) 214 (Tettensor); Re Alliance Employees’ Union and PSAC (Ritchie Grievance) (2002), 2002 CanLII 79138 (ON LA), 111 L.A.C. (4th) 402 (Lynk); Re Canada Safeway Ltd. and UFCW, Local 2000 (2002), 2001 CanLII 61984 (BC LA), 103 L.A.C. (4th) 1 (McPhillips). The Employer also relies on dictionary definitions of “determination”, “result”, and “challenge” from The Dictionary of Canadian Law, 2nd Ed., Carswell and Webster’s New Collegiate Dictionary, Merriam-Webster. The Employer asks the Board to uphold the MOA and dismiss these grievances.

The Union

9The Union submits that paragraph 3 of the MOA precludes the Union from challenging that the target was met at the 2% level (instead of 3%, 4% or 5%), as it could have done. It submits that in paragraph 3 the Employer has been given the right not to be challenged about how it calculated the 2009 attendance target, full stop. The grievances, the Union submits, do not challenge that. Instead, they challenge the number of “hours worked” used by the Employer to calculate individual employees’ actual absenteeism target incentive. Specifically, the grievances challenge whether time off for maternity/paternity leave should be included as “hours worked” under Appendix COR7, or time off on Union business, time off on STS, or WSIB or LTIP, or time spent in acting assignments, such as Acting OM16 assignments. These do not challenge the 2% target. They challenge the Employer’s interpretation and calculation of “hours worked.” The Union submits that while it cannot challenge the results of the data (i.e., that the 2% target was met), it absolutely can challenge the application of the payment to individuals.

Reasons for Decision

10The January 26, 2010 Memorandum of Agreement, at least insofar as paragraph 3 is concerned, is not a model of clarity. It may be given a broad interpretation, as the Employer proposes, or a far more narrow one, as the Union suggests. Upon careful reflection, I conclude that the Union’s interpretation is to be preferred.

11This analysis is somewhat hampered by the absence of any facts concerning what led to the negotiations for the MOA. Based on the “whereas” clauses, however, there was a dispute as to whether full year LTIP absences should be included in calculations for the attendance targets found in COR15.2 and COR18.1 and the parties’ desired to expeditiously report on whether the Year 1 targets were met. The parties agreed to include LTIP absences for Year 1 and not to include them thereafter. Clearly, though, there are many potential bases to challenge the Employer’s attendance calculations – errors in WIN, errors in data collection, errors in determining what should be included or excluded. Given that there are other potential bases to challenge the Employer’s attendance calculations, interpreting paragraph 3 as precluding the Union from asserting any further challenges to the Employer’s “2009 data” in terms of the target is a reasonable interpretation. By including the LTIP absences, the Employer agreed that the Year 1 target for a 2% absenteeism incentive was met – and there would be no further challenges by the Union. Under Appendix COR7, the incentive may be 3%, 4% or 5%, depending on the attendance calculations. The Union agreed to accept the 2% target, with no further argument or challenge. It agreed to accept the Employer’s 2009 data, as amended to include the LTIP absences, and would not further challenge “the method of data collection,…the Year 1 attendance report, calculations, determinations or results…”

12What is in dispute is whether the Union agreed to give up its right – and the rights of its members – to grieve anything and everything else in relation to the absenteeism target incentive. Grievance rights are very significant rights, and while the benefit that was conferred by the MOA (the Employer’s acceptance of LTIP absence inclusion in the 2009 calculation and thereby its acceptance that the 2% target was met) is very significant, clear language waiving the right to grieve is required.

13The Employer interprets paragraph 3 to mean that the Union waived its right to grieve “the Employer’s 2009 data” including its “calculations, determinations or results”, to include its determination of the “hours worked” under Appendix COR7. Under Appendix COR7, the amount of the incentive payment is based on the target that was met (whether it’s 2%, 3%, 4% or 5%) for “all hours worked [by a regular employee] in the period from the date of ratification to December 31, 2009.” Thus, as the Union argued, there are two prerequisites to an incentive payment. First, a determination that the absenteeism target has been met (and at what level). Second, how many hours the employee worked in the relevant time period. The Employer must do an individual calculation for each employee. If the intent of paragraph 3 was to preclude challenges to the “hours worked” aspect of Appendix COR7, the language used should have been much clearer. Arguably, “hours worked” may be encompassed by the Employer’s “2009 data”, but equally arguably, its “2009 data” and its “calculations, determinations or results” pertain to its absenteeism calculations – not an employees’ “hours worked”. The parties to this agreement are very sophisticated negotiators, and know how to write clear language. In my view, the language of paragraph 3 does not clearly waive either the Union’s or its members’ right to grieve the Employer’s determinations concerning “hours worked.”

14Nor do I agree that the Employer is left without the benefit of its bargain if the Union’s interpretation prevails. Paragraph 1 includes LTIP absences in the calculation of the attendance targets for 2009, but excludes it thereafter. That benefit remains. Second, there may have been other challenges the Union could have made to the Employer’s determination concerning the target, but it agreed not to do so. Both sides get finality on the issue of the target.

Conclusion

15For all of the foregoing reasons, the Employer’s motion to dismiss the grievances on the basis of the January 26, 2010 Memorandum of Agreement is denied.