GSB# 2016-1301; 2016-1568

UNION# 2016-0108-0016; 2016-0999-0059

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Campbell et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 27, 2019 and July 27, 2020 (via Zoom Virtual hearing)

DECISION

1The Board is seized with a union grievance, dated September 19, 2016, a group grievance dated August 19, 2016 relating to the way the employer applied article 31A.2.3 of the collective agreement to fixed-term employees. The parties agreed to the following:

• In this phase, the Board will determine the dispute between the union and the employer on the proper interpretation of article 31A.2.3, and remain seized with any disputes that remain, including remedy.

• The employer reserved the right to raise “estoppel”, following the issuance of the decision.

• The union would not be precluded from filing grievances on behalf of other OPS employees relating to progression through the salary range under article 31.2.3.

• While the employer would proceed first, the onus of proof remains with the union.

2The dispute is about when fixed-term COs at the Central North Correctional Institute (“CNCC”) progress through the salary range in the collective agreement. In other words, when do they get merit increases under article 31A.2.3 which reads:

31A.2.3 For the purposes of Article 31A.2.2, an employee shall progress through the salary range upon the completion of a minimum of one thousand seven hundred and twenty-five and a half (1,725.50) straight-time hours or one thousand nine hundred and four (1,904) straight-time hours, as applicable, including authorized leaves of absences.

3Effective January 1, 2016 a freeze on wage increases came into effect on OPS bargaining unit employees as a result of an interest arbitration award. The employer developed a Directive on Merit Increases (“the Directive”) on how to comply with article 31A 2.3. The Board was informed that for some two decades article 31A.2.3 had been applied in accordance with that Directive. Under that Directive, fixed-term COs reaching the required threshold hours during the latter half of a month, received salary progressions, i.e. the merit increase, only effective the first day of the following month. For example, if an employee reached the required threshold hours on the 16th or later in December 2015, he/she would progress through the salary range and get the merit increase only on January 1, 2016. The grievances are about a group of fixed term COs at CNCC who fell into that category. The union’s position is that the grievors are entitled to progress through the salary range as soon as they complete the annual threshold hours applicable, 1,725.50 or 1,904 (Hereinafter “the threshold hours”).

4The employer called two witnesses, Ms. Cassey Daley, Senior Compensation Policy Advisor in the Total Compensation Strategy Branch of the Treasury Board Secretariat since January 2014, and Ms. Theresa Bramwell, Deputy Superintendent of Finance at CNCC since 2009. These witnesses were presented as knowledgeable about, and experienced with, compensation issues in the Ministry, including merit increases. While each of the witnesses testified at some length, I do not find their evidence to be useful or of relevance in interpreting article 31A.2.3, which is the task entrusted to the Board in this phase of the arbitration. Their evidence was about their experience and understanding of the Directive, and how the Directive was applied to fixed-term COs. As it turned out, the two witnesses had different understandings of the Directive and how it was applied. Union counsel urged the Board to prefer the testimony of one witness, while employer counsel submitted that the evidence of the other witness should be preferred. I have not given any consideration to the testimony of either witness in determining the dispute joined, that is, whether the employer practice in the application of the directive as described by employer counsel, and set out above at para 3, is consistent with article 31A.2.3.

5I similarly find memoranda addressed to Ministry managers from Directors of Human Resources, Mr. R.G. Dawson (dated August 4, 1992) and Mr. David Walker (dated October 13, 2006) to be not relevant in interpreting article 31A.2.3. The two memoranda set out of the authors’ view of the Ministry policy on how to apply article 31A.2.3 based on the Directive. Those views are consistent with the interpretation of that article urged upon by employer counsel in this proceeding. The issue for the Board though is whether the views expressed in the memoranda and employer counsel’s submissions on the appropriateness of the policy, are consistent with the language set out in article 31A.2.3. There is no dispute about what the policy or practice was.

6Employer counsel referred to numerous arbitral authorities, including from this Board, about the principles of collective agreement interpretation. I will not review all of them because the principles are not disputed by the union and are well established. An excellent summary of the applicable principles is found in Re Compass Minerals Canada Corp. (2017) 2017 CanLII 72647 (ON LA), 284 L.A.C. (4th) 54 (Surdikowski) at paragraph 23 as follows:

23. A grievance arbitrator cannot rewrite the parties’ agreement. In the absence of an ambiguity established or resolved by extrinsic evidence, collective agreement wording trumps all considerations other than legislation, and a grievance arbitrator must interpret the collective agreement as written. An arbitrator cannot amend or imply terms into a collective agreement because he considers it fair or appropriate to do so, or because of his view of what the parties must have or could not have intended. Although has been written about collective agreement purpose, fairness, internal anomalies, cost or administrative difficulty, or the effect on the parties or bargaining unit employees, such considerations can only come into play when the grievance arbitrator must choose between equally plausible interpretations of the collective agreement language in issue – a situation which rarely presents. The grievance arbitrator is tasked with determining what the collective agreement provides or requires, not what he thinks it should provide or require, regardless of the effect on either party or on bargaining unit employees. The employer, the union, and bargaining unit employees are entitled to no more or less than the benefit of the bargain described by the words contained in the collective agreement. Clear collective agreement wording prevails over all considerations other than legislation. It is up to a party that is dissatisfied with the consequences of the collective agreement bargain as determined by a grievance arbitrator to seek a collective bargaining solution. It is no part of a grievance arbitrator’s job to save the parties or either of them from the consequences of the agreement as written by them.

7Also relevant here is the principle that the onus is on the union to establish that the employer has agreed in clear and unequivocal terms to provide the monetary benefit it is seeking. Re Vitorino et al, 2009-1293 (Abramsky) Para.11.

Employer Submissions

8Counsel submitted that the use of the word “minimum” in article 31A.2.3. is critical. He pointed out that the grievances claim that the merit increase must be applied “on the day it is earned”. He argued that this would require the Board to ignore the word “minimum” in the article.

9Counsel submitted that when the parties intended that something must follow at a precise time following the happening of an event, they have used language to indicate that intention. Thus in article 18.1.1. it is stated that “An employee’s length of continuous service will accumulate upon completion of a probationary period …”. In article 31A itself, at sub-article 7.1, the parties have provided that fixed-term employees shall receive a payment of a specified payment in lieu of benefits “upon completion of one (1) month of continuous service”. If the parties intended what the union is seeking, they would similarly have simply provided in article 31A. 2.3 that employees “shall progress through the salary range upon the completion of x number of hours”. However, unlike in article 18.1.1. and 31A.7.1., they have used additional words “a minimum of”. Counsel submitted that those words were added deliberately to indicate the intention that, once the threshold hours are completed by an employee, the implementation of the salary progression would be left “open-ended” to a date to be determined by the employer at its discretion. In the exercise of that discretion the employer has reasonably determined that merit increases would be applied on the first of the month following, where an employee completes the threshold hours in the second half of the month. Counsel submitted that although the impact of the employer’s exercise of discretion may be perceived as unfair, the parties have allowed the employer to do that by adding the word “minimum”. The language of the collective agreement therefore trumps equitable considerations, and must be given effect. Counsel further relied on the fact that the current language in article 31A.2.3 has been part of successive collective agreements spanning a significant period of time.

Union Submissions

10Union counsel submitted that the key words in article 31A.2.3 are “shall progress … upon completion”. She argued that “shall” denotes that the parties intended it to be mandatory that progression occurs “upon the completion of” the minimum threshold hours. She pointed out that article 31A.7.1 also uses the mandatory “shall” language, and submitted that both articles, by the use of mandatory language, stipulate “when” something must necessarily happen when the condition is met. If the parties intended to give the employer a choice, they would have used language to the effect that upon completion of the minimum threshold hours, “an employee becomes eligible” to be granted a salary progression by the employer. Instead, they used mandatory language to indicate that upon the completion of the threshold hours, progression shall or must happen.

Decision

11It bears repeating that the sole issue in this phase of the proceeding is the proper interpretation of article 31A.2.3. Neither party has asserted that the article is ambiguous. To the contrary, each argued that the language is clear and supportive of their respective interpretations. Neither party sought to rely on extrinsic evidence for the purpose of raising an estoppel, or as an aid to interpretation. In the circumstances, I have not considered any evidence of past practice. Nor do I consider the fact that the current language has existed in several predecessor collective agreements between these parties to be of any relevance, because time by itself cannot change the meaning of the words in the article.

12Having carefully considered the respective positions and submissions of the parties I conclude that the union’s interpretation is to be preferred. Employer counsel argued that the word “minimum” does not denote a precise number, and that it indicates an intention to keep the number open-ended. He cited Re Rouge Valley Health System, 2009 CanLII 88060 (Johnston). I find nothing in that decision to support the employer’s position that the use of the words “a minimum of” in article 31A.2.3. gives the employer an open-ended discretion to decide when to apply salary progression to an employee who had reached the stipulated threshold hours. In Rouge Valley supra, (p.14) employer counsel submitted that “Minimum is entirely open-ended and does not create a precise definition”. That is the same submission of employer counsel here. I agree with that definition and meaning of the word. It means “not less than”. However, in interpreting a word in a collective agreement, the manner in which the word is used in the particular provision and the structure of the whole provision must be considered. Indeed, where the same word is used in other provisions of the collective agreement, the context and the structure of those other provisions must also be examined. A word ought not to be defined in isolation.

13The decision in Re Sysco Central Ontario Inc. 2013 CanLII 90009 (Davie) is instructive in this regard. There the collective agreement included the following relating to “Hours of Work and Overtime”.

17.01 (a) The standard work week shall consist of five (5) days of a minimum of eight (8) hours each, four (4) days of a minimum of ten (10) Hours each, and three (3) days of a minimum of twelve (12) hours each. There shall be seven (7) operational days per week and there shall not be any rotation of shifts. The Company has the right to determine how many of each shift arrangement listed above shall exist, and the days on which they are scheduled.

For the three (3) day work week, full-time employees shall not be forced to work on such shift. The posting of the three (3) day work week shall remain open.

(b) The Employer will provide a minimum of forty (40) hours of work to drivers providing that they have bid for forty (40) hours. The normal work week shall consist of five days, four days or three days. The guarantee does not apply in cases where a driver bids a three-day work week or voluntarily bids less then (sic) forty (40) hours per week. (Including Saturday and Sunday).

14The union took the position that both 17.01(a) and 17.01(b) use the word “minimum” which means “not less than” and that the word must be given the same meaning in both provisions. The arbitrator disagreed. At p. 9 she wrote:

This leads me then to contrast and compare Article 17.01 (a) and 17.01(b). Although the word “minimum” appears in both, the language which surrounds the word “minimum”, and the structure of the two clauses differs significantly.

Article 17.01(b) speaks of a “guarantee”. It requires the Employer to “provide” forty (40) hours of work to employees who bid for forty (40) hours of work. The first sentence of Article 17.01(b) requires the Employer to provide, or make available, “forty (40) hours of work.” By way of contrast Article 17.01(a) does not refer to an obligation on the Employer to make available work. The words “will provide” and “hours of work” are conspicuously absent from 17.01(a) lending further support to the Employer’s position that 17.01(a) deals with a schedule of hours as opposed to hours of work which must be given to employees.

15On examining the use of the words “of a minimum” in article 31A.2.3 in light of the whole article, I do not find that the provision confers on the employer the open-ended discretion it asserts. The word “minimum” is used only to describe the hours the employee is required to complete to reach the threshold. The word “minimum” is used to indicate that the completed hours need not be precisely 1725.50 or 1,904 for an employee to earn the merit increase. It is sufficient if the hours are not less than those numbers. The word minimum keeps the hours required to meet the threshold open-ended, in the sense that it does not fix an exact number of hours. However, the word does not have any relevance or impact on the mandatory obligation imposed on the employer by the use of the words “shall progress”. It does not allow, as employer counsel argues, that the employer is entitled to defer the merit increase of an employee who has completed the required threshold hours to any date it decides at its discretion. In Sysco Central Ontario Inc. (supra) it was held that the use of the words “will provide” in article 17.01(b), requires the employer to “provide or make available” the specified minimum hours of work. The words “shall progress” in article 31A.2.3 similarly requires that an employee progress through the salary range upon completion of the specified minimum number of hours, and I so find.

16Therefore, I find that the manner in which article 31A.2.3 is applied, as described by employer counsel, is inconsistent with article 31A.2.3. The collective agreement requires that the progression be granted when the threshold is met.

17Having interpreted article 31A.2.3, I remain seized with the instant union and group grievance properly before me.