GSB#2018-1923; 2018-3132

UNION# 2018-0453-0002; 2018-0453-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fowler et al)

Union

• and -

The Crown in Right of Ontario (St. Lawrence Parks Commission)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 22, 2020

Decision

1The Board is seized with a union grievance, and a group grievance filed by two seasonal employees, Mr. William Fowler and Mr. Pat Taylor. Although these grievances were filed in the normal course, the parties jointly requested that they be dealt with under article 22.16 of the collective agreement, except that the Board would not be held to the time limits specified therein.

2The union and group grievances in substance make the same allegations which are captured in the following statement in the former.

STATEMENT OF GRIEVANCE

The Union grieves that the Employer violated, and continues to violate, Collective Agreement Articles 2 (“Management Rights”), 32 (“Seasonal Employees”), UN2 (“Hours of Work”), and the Unified Salary Schedule (and any other relevant articles and legislation), by scheduling its Schedule 4/4-7 Seasonal employees for 36.25 hours/week (and paying them accordingly), rather than scheduling them for 40 hours/week.

3Besides a few documents, the grievances were argued on the basis of the following Agreed Statement of Facts:

1. The Parties have consolidated Group grievance 2018-0453-0002 (Fowler / Taylor) and Union grievance 2018-0453-0005 (attached).

2. The Union claims that the Employer breached Articles 2, 32, UN2, Unified Salary Schedule and applicable legislation/regulation in its scheduling of 4 / 4-7 seasonal employees for 36.25 hours per week rather than 40 hours per week.

3. The Union seeks an order directing that the seasonal employees be scheduled for 40 hours per week and affected employees receive full retro and interest and pension and any other remedy the Arbitrator deems just in the circumstances.

4. The Employer denied the grievances by letter dated August 27, 2018 (attached).

Background to Grievors

5. The Group Grievors are employed by the St. Lawrence Parks Commission (SLPC), an Ontario provincial agency with responsibility for managing the Upper Canada Village, Fort Henry National Historic Site and recreational areas known collectively as the "Parks of the St Lawrence."

6. Pat Taylor holds a seasonal position in the Maintenance Mechanic 2 classification. Bill Fowler works as an Artisan 3 in the Summer season at Upper Canada Village. He regularly works Group 1 contracts in the Winter as a Maintenance Mechanic.

7. Since in the early part of 1988, all seasonal and fixed term employees at SLPC with 40-hour work weeks were reduced to 36.25 hours per week.

8. In the Spring, 2018 SLPC and Local 453 agreed to convert some positions in the maintenance unit from seasonal to full-time. The converted positions were scheduled for 40 hours per week. Prior to conversion the positions were scheduled 36.25 hours per week.

9. On or about June 27, 2018 Mr. Taylor, a Maintenance Mechanic, spoke with Rob Filliol, Supervisor, asking why he, as a seasonal employee, was only scheduled for 36.25 hours per week when there was clearly enough available work to warrant 40 hours per week. Mr. Filliol advised Mr. Taylor that seasonal employees were not allowed to work 40 hours per week. Mr. Filliol advised Mr. Taylor that further questions should be taken up with the Union.

10. Mr. Taylor inquired with the Local Steward, Julian Whittman. Mr. Whittman advised Mr. Taylor that pursuant to the Collective Agreement his classification fell under Schedule 4-7 which provides that such employees are to work 40 hours per week.

Articles in the Collective Agreement

11. Article UN2 sets out hours of work as 36.25 for Schedules 3 and 3.7 and 40 hours for Schedules 4 and 4.7.

UN 2.1 SCHEDULE 3 and 3.7

The normal hours of work for employees on these schedules shall be thirty-six and one quarter (36¼) hours per week and seven and one quarter (7¼) hours per day.

UN 2.2 SCHEDULE 4 and 4.7

The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day.

12. Article 32.2.1 defines a seasonal employee as working either 36.25 or 40 hours per week as applicable.

32.2 DEFINITION

32.2.1 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the Fixed-Term Service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36¼) or forty (40) hours per week, as applicable.

32.2.2 For the purposes of Article 32.2, same position is defined as the position in the same classification, in the same organizational or administrative unit and work location which the employee held prior to the seasonal break.

13. The Salary Schedule sets out rates of pay and schedules (such as 4.7 referenced above) for each classification. Maintenance Mechanic 2 is listed as a 4.7 classification.

14. Mr. Taylor was advised that he works 36.25 hours per week because he is a seasonal employee. However, Article 32.2.1 states that a seasonal employee may work 36.25 or 40 per week "as applicable". The applicability is in relation to that identified in the Salary Schedule.

15. Mr. Taylor advised co-workers of Mr. Whittman's information.

16. Mr. Fowler (Sawmill Operator / Artisan 3) and Mr. Taylor (Maintenance Mechanic 2) believe that they should be working 40 hours per week.

17. Mr. Fowler works as an Artisan 3 in the Summer season at Upper Canada Village. This is Schedule 4.7. He regularly works Group 1 contracts in the Winter as a Maintenance Mechanic.

18. Mr. Whittman assumed a Management position in July 2018. Mr. Santin replaced Mr. Whittman as the Union Rep.

19. Mr. Santin met with Shannon Moulton (Human Resources) in mid-July 2018 to discuss the issue. Ms. Moulton advised seasonals are not eligible for 40 hours as they are not "Regular Service" employees and that it has "always been done that way" since she started in her position. Mr. Santin advised Ms. Moulton that the members wished to grieve this decision.

20. The Employer also subsequently advised the Union that its position is that SLPC had and still has the management right to a different schedule as occurred in the early part of 1988 where all seasonal and fixed term employees with 40 hours work weeks were reduced to 36.25 hours per week to meet budget shortfalls. Management also discussed with the Union that the application provisions of the Public Service Act/Public Service of Ontario Act and relevant case law support this management decision.

21. The grievance (2018-0453-0002) is dated July 20, 2018.

EMPLOYER SUBMISSION

4Employer counsel pointed out that the only collective agreement provision specifying the number of weekly hours of work is UN 2.2. It provides that the weekly work hours for employees in schedules 4 and 4.7 shall be 40 hours per week and eight hours per day. However, article UN 2.2 does not apply to the grievors who are seasonal employees. He pointed out that the collective agreement having provided in article 32.1 that articles 32.2 to 32.21 apply only to seasonal employees, at articles 32.21.1 and 32.21.2 sets out lists of other articles in the central and bargaining unit collective agreements, that also apply to seasonal employees. Neither list includes article UN 2.2. He submitted that this alone is dispositive, and on that basis the Board should dismiss the union’s claim.

5Counsel submitted that the Grievance Settlement Board has held that the reference to hours of work in salary schedules in the collective agreement is material only for purposes of determining when employees in the various schedules become entitled to overtime pay. The Board has held that the salary schedules do not create entitlement to a minimum number of hours per week to any employee. He relied on Re McGann, 0789/98 (Harris) and argued that in that case the Board rejected the same argument the union makes here. That decision, he submitted, is not manifestly wrong, and therefore, in accordance with “the Blake principle”, the Board should not depart from it. He also referred to Re Boisvert et al, 2018-0266 (Banks). He acknowledged that this decision was rendered pursuant to article 22.16 and has no precedential or binding effect. However, he urged that the Board should take guidance from it because it makes very good sense and is consistent with the collective agreement. There the Board followed Re McGann and again rejected the same argument the union makes here. Counsel also referred to case law, including Re Vitorino et al, 2009-1293 (Abramsky) as supporting the principle that a union claiming a monetary benefit has the onus to establish that the collective agreement contains clear and unequivocal language supporting that claim. It was the employer’s position that there is no provision anywhere in the collective agreement which provides that seasonal employees are entitled to 40 hours a week. Therefore, their hours depend on their individual contracts.

UNION SUBMISSIONS

6Union counsel pointed out that historically seasonal employees such as the grievors had 40 hour work weeks. In 1988 it was reduced by the employer to 36.25 hours, explicitly stating that the change was made due to budgetary constraints. There is no evidence that there was any change in the applicable collective agreement language that required a change in the weekly hours of seasonal employees.

7Counsel conceded that article UN 2.2 itself does not apply to seasonal employees. However, he noted that there is no doubt that Article 32 does. That article at 32.2.1 defines “seasonal employee” which concludes with the sentence, “For purposes of this definition full-time means a minimum of thirty-six and one quarter (36¼) or forty (40) hours per week, as applicable”. He argued that well established principles of collective agreement interpretation require that all words used by the parties be given meaning. Counsel submitted that the words “as applicable” denotes that seasonal employees may be entitled to either 36¼ or 40 hours a week, dependent on “something”. Therefore, the Board has to determine whether these grievors are entitled to 36¼ or 40 hours. In order to do that it must determine what that “something” is. Counsel submitted that the search for the meaning of “as applicable” must be done by examining the whole collective agreement.

8Counsel referred to Regulation 977, under the Public Service of Ontario Act, 2006. Which at s. 9(1) provides that “The hours of work per week which shall be performed by civil servants of the classifications set out … in Schedule 4, shall be 40 hours”. Counsel noted that s. 9(3) of the Regulation which sets out specific circumstances in which the weekly hours per Schedule 4 employees may deviate from the mandatory 40 hours. He argued that the grievors were not reduced to 36 ¼ hours in any of the specified circumstances. Counsel admitted that Regulation 977 was revoked on December 20, 2007, but reasoned that it is still of some assistance to the Board’s analysis.

9Union counsel also relied on an Hours of Work Directive issued by the employer, which under the heading “Mandatory requirements” provides”

All employees must be assigned the hours of work prescribed for their position’s class as set out in the hours of work schedules in the Hours of Work Section of the Management Board of Cabinet Compensation Directive and any applicable collective agreements.

10Counsel filed Part 1 of the Management Board of Cabinet Compensation Directive referred to in the Hours of Work Directive. Under the heading “Conditions of Employment”, s. 3(1) of that directive provides: “The hours of work per week which shall be performed by regular employees of the classifications set out … (b) in Schedule 4, shall be 40 hours”.

11Counsel submitted that all of these indicate that seasonal employees’ weekly work hours are linked to classifications and the schedule they fall into. He pointed out that article 32 itself ties entitlement of seasonal employees to classifications in relation to several other benefits including wages (32.6.1), holidays (32.14.1) and union dues (32.20.1).

12Counsel then referred to the Administrative Classification Group, Unified Salary Schedule in the collective agreement. It sets out numerous classifications, and applicable wage grids for each classification. The schedule each classification belongs to is also set out under a column titled “Hours of Work Schedule”. He pointed out that the classifications of the grievors’ positions is indicated to be schedule 4. Referring to his earlier submission that schedule 4 employees are entitled to 40 hour work weeks, counsel argued that the grievors, as Schedule 4 employees, are entitled to 40 hour work weeks.

DECISION

13The Re McGann decision parallels the instant case substantially. The union’s argument here that although article UN 2.2 does not apply to seasonal employees, the assignment of seasonal employees to schedule 4, “pulls in” the classifications and the associated schedules set out as “hours of work schedules”, was also made in Re McGann, although differently framed. This argument was rejected by the Board at pp. 19-20:

Under article 31.2.1, the wage rate is that of the “equivalent civil service classification.” That classification applicable to the grievor is OAG 6. That classification has an established wage grid and is on schedule 3.7. By virtue of article 31.16.2, the grievor is not entitled to the normal hours of work set out in OAD 2.1. However, by virtue of article 31.1, various wage-related provisions are applicable to the grievor, including overtime, reporting pay, holidays etc. In the case of overtime, it is necessary to determine when overtime is payable, for example after 7¼ hours or 8 hours per day. For the classified staff, that is determined by the schedule they are on. For schedule 3-7 employees it is 7¼ hours. For unclassified staff, they are in a category equivalent to schedule 3-7 for purposes of wage calculation. However, that does not put them on schedule 3-7 for purposes of “normal hours of work”, which is expressly excluded by 31.16.2. Although identical words in a collective agreement should be given the same meaning (i.e. schedule 3-7 in the salary schedule and in OAD 2-1), there is a clear indication in the article 31.16.2 list that the parties intended otherwise. Effect must be given to that clear intention. Nor does the policy document alter the clear intention of the collective agreement. Even on its face, that document contemplates the unclassified staff routinely working less than 7¼ hours because of their adjustable start time.

Accordingly, the grievor’s allocation to the equivalent of schedule 3-7 can be seen to have utility and applicability as a category for determine wages, overtime etc. while maintaining the integrity of the list in article 31.16.2.

14I agree that the references in article 32 to classifications, and employee schedules may, to use the phrase used by union counsel, “pull in” those provisions into article 32 for a number of specified purposes such as, wages, wage progression, holidays, union dues etc. However, it does not “pull in” those for purposes of weekly hours purposes, to override the clear and explicit exclusion of article UN 2.2 in article 32.21.

15Now I turn to consider the significance of the words “as applicable” in the definition of “seasonal employee” in the collective agreement. I agree with union counsel that the definition contemplates that seasonal employees may have weekly hours of either 36¼ or 40, and that “as applicable” indicates that the entitlement of a particular seasonal employee, - 36¼ or 40 - must be found “somewhere else”. That somewhere else, according to union counsel, are the references in article 32 to classifications, and employee schedules etc. which give seasonal employees the same entitlement that applies to employees in schedule 4. He submits that the rejection of that argument in Re McGann, followed in Re Boisvert, ignored the significance of the words “as applicable”, which qualifies the rest of the article. Citing cannons of collective agreement interpretation, he submitted that it was wrong to ignore those words. All words in the article must be given meaning. Counsel noted that in Re Boisvert at para 10, the Board in fact referred to the words “as applicable” and wrote “this drafting clearly indicates that the determination of the number of a seasonal employee’s weekly work hours will be made elsewhere.” However, having said that, the Board rejected the union’s reasoning that the salary schedule indirectly creates an entitlement of 40 hours for seasonal employees in schedule 4. The Board did not go on to consider where else a seasonal employee’s weekly hours may be found, if it is not in the classifications and the associated schedules. Instead, the Board simply dismissed the grievance concluding at para. 16 that the collective agreement does not establish, directly or indirectly, specific minimum weekly work hours for the seasonal employees who had grieved. Counsel urged me not to follow the McGann and Boisvert decisions.

16The union’s argument is very creative. However, I am not convinced that it is a reasonable interpretation of the collective agreement. As arbitrators, including this Board, have recognized, entitlement to monetary benefits should be recognized only based on clear and unequivocal language and not obliquely or by inference. This is more so in the face of clear and unequivocal language specifying that there is no such entitlement, as article 32.21 does, in this case. Regulation 977, which was revoked in 2007 does not assist the union to advance grievances filed in 2018. To the contrary, it establishes that a regulatory requirement specifying weekly hours for all civil servants based on their schedule existed at one time, but had been revoked.

17It suffices to observe that the employer’s own unilateral directive on Hours of Work Directive and its Management Board of Cabinet Compensation Directive, would not have the effect of amending or adding to the provisions of the collective agreement. In any event, the Hours of Work Directive having set out “mandatory requirements relating to hours of work for “all public servants”, at p. 2 states “For bargaining unit employees. See the applicable collective agreement”. That recognizes that for bargaining unit employees, hours of work are governed by the applicable collective agreement.

18The Management Board of Cabinet Directive stipulates in s. 3(1) that 40 hours per week apply to “regular employees in schedule 4” of the classifications set out. Moreover, s. 3(6) provides that “This section does not apply to Group 1 of the part of the public service of fixed term employees.” Seasonal employees are a category of fixed term employees. Therefore, s. 3(1) of the Directive does not apply to them.

19I have reviewed the Re McGann and Re Boisvert decisions and agree with union counsel that neither decision, having concluded that the provisions relied on by the union do not create entitlement of a minimum number of weekly work hours – 36¼ or 40 – goes on to find where else that determination is to be found. It appears that in those cases, the argument articulated by union counsel here, was not made. That is, that the words “as applicable” must be given meaning and cannot be ignored.

20However, that does not mean that the conclusion in those decisions that the provisions the union relied on do not create an entitlement to specific hours for any seasonal employee, is wrong, as the union asserts. I find that the reasoning and the conclusion in those decisions are correct. It appears that the Board in those cases did not go on to consider where else the weekly hours of a seasonal employee may be found, because it was not called upon to make that determination. In Re Boisvert one of the arguments made by the employer was to the effect that “Normal hours and overtime thresholds of Classroom Assistants are to be found in their individual contracts of employment, given that the collective agreement does not set them”. (See para.6, item 11). However, given the Board’s conclusion that the union had failed to establish an entitlement to specific weekly hours, the Board did not have to, and did not consider whether that submission by the employer was well founded.

21In the instant proceeding also, employer counsel did submit that weekly hours of work of seasonal employees are governed by their individual employment contracts. However, he did not explicitly tie that submission to the words “as applicable” in article 32.2.1. That issue has been explicitly raised before me., The parties were agreed that seasonal employees are a category of fixed term employees. Therefore, each seasonal employee would be party to an individual contract setting out the duration and terms of employment. It is trite to observe that individual contracts must not be inconsistent with terms of the collective agreement. The union has not asserted that the fixed term contracts of the grievors entitle them to 40 hour work weeks. To the contrary, the evidence is that since 1988, the hours were reduced to 36¼, which is not inconsistent with the collective agreement, which contemplates that weekly hours of seasonal employees could be either 40 or 36¼.

22On all of the evidence, I find that the words “as applicable” mean “depending on whether the individual contract specifies 36¼ or 40 hours a week.” I have, like previous decisions of this Board, concluded that the collective agreement does not provide the answer as to a seasonal employee’s entitlement. It only specifies that it could be either 36¼ or 40 hours. Thus, in the exercise of its management rights, the employer is entitled to opt for one or the other of the choices in terms of minimum weekly hours. Its decision to change from 40 to 36¼ hours is consistent with the definition of “seasonal employee”. Since the collective agreement does not specify any other minimum entitlement the individual contracts are valid and enforceable. They are not inconsistent with any term of the collective agreement.

23For all of those reasons, I conclude that the union has not established a violation of the collective agreement. The grievances are accordingly dismissed. Given that disposition, I do not deal with the employer’s alternate submissions based on estoppel.