Ontario Sheet Metal Workers’ and Roofers’ Conference v. Vollmer & Associates

0576-00-G; 0871-00-G Ontario Sheet Metal Workers’ and Roofers’ Conference, Sheet Metal Workers’ International Association, Local 235, Applicants v. Vollmer & Associates, Responding Party.

2400-00-G Sheet Metal Workers’ International Association, Local 235, Applicant v. Vollmer & Associates, Responding Party

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Jerry Raso and Robert MacIntyre for the applicant; Leonard Kavanaugh and Brad Vollmer for the responding party.

DECISION OF THE BOARD; April 12, 2001

1. This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). This case involves a dispute between the applicant, Sheet Metal Workers’ International Association, Local 235 (“the Sheet Metal Workers” or “the union”) which is the local union of the Sheet Metal Workers’ International Association with territorial jurisdiction in the Windsor and Chatham areas and Vollmer & Associates (“Vollmer” or “the Employer”), a contractor based in Windsor and primarily active in that area. The dispute is over the proper calculation of wages to be paid for certain hours worked on Saturdays, Sundays and holidays.

2. The parties agreed that any hours worked on Saturdays, Sundays and holidays were to be paid at the rate of two times the regular hourly rate. The issue in dispute is whether such work also attracts a shift premium in addition.

3. Put in its simplest form, the union asserts that a shift premium is payable for hours worked during the second shift (which is, in the union’s argument, the afternoon hours) and the third shift (which is, in the union’s argument, those hours which include midnight). The Employer’s position is that while there may be various hours of work performed on a weekend, none of these hours attracts a shift premium.

4. The parties’ argument centred on Article 25.2 of the main portion or “Body” of the collective agreement:

25.2 Overtime on shift work shall be paid at the applicable shift hourly rate including premium. All shift work performed between 8:00 a.m. Saturday and midnight Sunday and/or between 12:01 a.m. and midnight of a Holiday shall be paid for at two times the hourly rate including the applicable shift premium.

5. The facts are relatively straightforward. Occasionally Vollmer performs work for customers on Saturdays, Sundays and holidays. Three examples of the work performed by Vollmer in the past which generated this sort of dispute are as follows:

6. Sunday March 12, 2000 7:00 a.m.-12 noon 5 employees Job no. 29-341-030

3:00 p.m.-10:30 p.m. 5 employees Job no. 97-510P

2. Sunday April 9, 2000 2:00 p.m.-11:00 p.m. 4 employees Job……..

3. Saturday, June 10, 2000 & 6:30 a.m.-3:00 p.m. 3 employees (same job)

Sunday, June 25, 2000 3:00 p.m.-11:00 p.m. 1 employee (same job)

6. During two pay periods in December 1999, Vollmer required employees to work on Saturdays and Sundays. It paid double the regular hourly rate for such work, and in addition, paid double the shift premium. Brad Vollmer, General Manager of the Employer, testified that this was an error made by an office employee, rather than any conscious decision by Vollmer. He discovered this error on return from an absence from the office and instructed his accounting staff to deduct from the next pay period what he determined to be the “overpayment” (i.e. the shift premium) from those employees’ paycheques. The union grieved that those employees had not been paid wages for that pay period, and that they were entitled to be paid the shift premium.

7. As indicated, there were two other grievances filed with respect to the refusal of Vollmer to pay a shift premium in addition to the weekend “overtime” rate of double time. These grievances were dated June 15, 2000 (Board File 0871-00-G) and November 14, 2000 (Board File 2400-00-G). However, all three of these grievances turn on fundamentally the same issue. The one additional issue in Board File 0576-00-G relates to the alleged failure to pay the proper wages for the first pay period in January of 2000.

8. This issue is not a new one in the Windsor area or under this collective agreement. It has been the subject of debate and of grievances and arbitration before the specific events giving rise to these grievances. In 1985 this Board dealt with a grievance arising on the same issue arising in the London area which dealt with some, but not all of the same provisions (the “Baird”decision). In 1999 there was a dispute between the union and Giffen Sheet Metal Ltd., which I will deal with more fully below. The union filed a grievance alleging that Giffen had violated the collective agreement by scheduling employees to work weekend “shifts” and not paying a shift premium. This grievance was referred to arbitration. The arbitrator concluded that shift premiums were payable for the hours in dispute. His award (the “Giffen decision”) is dated November 30, 1999. The specific incidents which led to the grievances against Vollmer began in December 1999.

9. There are certain other facts surrounding the Giffen decision which are relevant here. As noted, that decision dealt with a grievance filed in respect of hours worked by employees of Giffen on a weekend. Although it was not joined formally as a party, it was a grievance in which the Ontario Sheet Metal and Air Handling Group (the employer bargaining agency in this relationship, the “OSM”) took a keen interest. Representatives of OSM were present during the hearing. Counsel for OSM acted for Giffen in that case. Mr. W.H. Gardner, Manager of Labour

Relations for OSM at the time, testified that “OSM took conveyance of this issue”.

10. The OSM and the union agreed to appoint a “private” arbitrator (i.e. one who was appointed by the parties who both consented to his appointment pursuant to section 48 of the Act rather than the Board sitting as arbitrator of a grievance referred to the Board under section 133 of the Act). This was the second time the two parties had agreed to submit their dispute to the same arbitrator. On the first occasion, a grievance involving the interpretation of the collective agreement was litigated before him. The union lost. It did not apply for judicial review and essentially accepted the decision as the prevailing interpretation of the collective agreement. On the occasion of this grievance, OSM and the union agreed on the same process.

11. The grievance in Giffen involved the payment of a shift premium when two “shifts” of work were performed on a weekend. In that case, two different groups of employees were scheduled hours such as:

Saturday, Sept. 5, 1998 6:00 a.m.-4:30 p.m.

Saturday, Sept. 5, 1998 4:30 a.m.-3:00 a.m.

Sunday, Sept. 6, 1998 6:00 a.m.-2:30 p.m.

12. In preparation for the case, OSM polled contractors in the Windsor area to determine what the practice in that area had been. What the OSM was told is, of course, hearsay in this proceeding. However, suffice it to say that OSM did not put forward an argument that there was an invariable practice in the Windsor area sufficient to found an argument of estoppel or to suggest there was an ambiguity which could be clarified by extrinsic evidence of area practice. Giffen’s company practice had been to pay shift premium for hours worked on Saturdays, Sundays and holidays.

13. The arbitrator found in favour of the union. He concluded:

In the result, the grievance must be allowed. The employees who worked the hours set out in paragraph 22 of the agreed statement of facts were entitled to be paid as the union claims; that is, at double their regular hourly rate including shift premium for all such hours.

He did not identify what the shift premium was, or perform the calculations, but remitted that task to the parties. As a result of this decision, OSM issued Bulletin No. 29-99 to its members which states in part:

The arbitrator ruled there could be shift work on Saturday, Sunday and holidays and payment would be in accordance with Article 25.2, Body of Agreement, this was the union’s position.

We would advise you at this time that when you work a schedule of hours on Saturday, Sunday and holidays on a twenty-four hour per day basis, that is, two shifts or three shifts, the terms of Article 25.2 apply, unless the Appendix directs otherwise. Over the next few days, we will be meeting with our legal counsel to discuss the payment for work on Saturday, Sunday and holiday when the schedule of hours does not cover a twenty-four hour per day timeframe.

14. The parties met and agreed on the money payable to the Giffen employees. Employees were paid double the rate applicable to the shift premium which the parties agreed they ought to have been paid, pursuant to the arbitration decision. As on the first occasion the losing party, in this case the OSM, “accepted” the decision and did not apply for judicial review.

15. Mr. McIntyre, Business Manager of the union, testified with respect to the shifts and shift premiums defined in Clause 12. He stated that the union did not take a rigid approach to the start and stop times of each shift. The clause ends with the following:

Note : Flexible starting and quitting times subject to mutual consent of the local union and the employer.

Relying on this note, the union takes the position that if a majority of the hours worked falls within one of the defined shift times, all hours worked by the employee on that day will be paid at the rate of that shift. That is, wage rates are uniform through the day; they do not change at 4:30 p.m. or 12:01 a.m. This appears to be a sensible arrangement and one that Windsor area contractors have lived with for some time. That is how shift premiums have been paid when contractors acknowledge that a shift premium is payable at all. The Board heard no evidence to contradict this from Brad Vollmer, although he testified that he rarely scheduled work to begin at times other than the required shift times.

16. Following the release of the Giffen decision, the union and OSM also attempted to develop an overall understanding with respect to weekend work. OSM proposed an “interim” arrangement which would prevail until a further local meeting could agree on an overall understanding of the Article and payment for weekend work was arrived at. Neither was achieved. Other than the immediate application of the decision, and specifically to work performed virtually around-the-clock, there was no understanding among the parties at all. Certainly nothing was signed which would constitute an amendment to the collective agreement, or even an agreed upon understanding about the interpretation of either the agreement or a decision.

17. On December 10, 1999 the union faxed a notice to all contractors in the Windsor area reminding them of the decision and asserting a claim to a shift premium for work done on Saturdays, Sundays and holidays in the event of Christmas shut-down work. A copy was faxed to Vollmer.

18. The two weekends on which a “shift premium” was paid came after the union’s facsimile communication. I accept Mr. Vollmer’s evidence that the decision to pay such a premium was his alone to make on behalf of the company, and that he made no such decision. Otherwise, his explanation as to how the payment occurred (which in fairness was not really offered in examination-in-chief) is hearsay and the Board cannot rely on it. When Mr. Vollmer discovered what had been done, he instructed his accounting staff to deduct the amount otherwise payable to employees represented by the union for work performed in the second pay period in January, a sum equal to the monies paid, in respect of a “shift premium” in December.

19. Finally, Brad Vollmer gave brief evidence about bargaining. The collective agreement is a provincial collective agreement and is bargained by OSM as the employer bargaining agency. There is a Windsor representative on the OSM Board. He testified that had he known the union took this view of the collective agreement in 1998, he would have taken steps to ensure the collective agreement made it clear that no shift premium was payable. To the extent that Vollmer had performed work on Saturdays, Sundays and holidays, his evidence was that it had never paid such premium. I heard no evidence as to how Appendix “M”, which refers to the Windsor Sheet Metal Contractors Association as the “Local Trade Association” is bargained, although I suspect this is done by the parties listed in that Appendix rather than in some central fashion. Of course, the final terms of any collective agreement must be ratified by the two EBAs.

Issues

20. There are three issues to be determined in this decision:

21. What is the weight to be given to prior decisions, and in particular, the Giffen decision.

22. The meaning of the collective agreement with respect to payment for weekend work.

23. The effect of the deduction from paycheques of 2000.

Effect of Prior Decisions

21. There is no system of stare decises among arbitrators with respect to one another’s decisions. However, it is commonplace wisdom among arbitrators that in dealing with an issue that is the subject of a previous arbitration award between the same union and the same employer on the same collective agreement language, that decision is one which a subsequent arbitrator ought to follow unless he or she is convinced that the first decision is clearly wrong. There are two opposed forces at work in this proposition. First, each arbitrator is an independent adjudicator who must turn his or her mind to an issue and judge the matter fully. Previous decisions may be given greater or lesser weight, but none of them is controlling. On the other hand, certainty is a value which arbitrators, like all adjudicators, desire to promote. Fundamentally, a contract is reduced to writing to promote certainty as to the terms of the agreement. Once an arbitrator has determined the meaning to be given to the provisions of a collective agreement, a subsequent arbitrator should follow it. This promotes certainty. It reduces the likelihood that parties will “try their luck” relitigating essentially the same issue on identical facts which occurred subsequent to the issuing of the award

22. One authoritative statement of this principle is set out in a decision by arbitrator K. Swan in Re Phillips Cables Ltd. and United Electrical Workers, Local 510, 1977 CanLII 2967 (ON LA), 16 LAC (2d) 225 at p. 232 as follows:

We turn, then, to the second question: ought we as a matter of comity and public policy, to follow the earlier award? The policy issue is distinctly stated by a distinguished arbitrator in Re Brewers’ Warehousing Co. Ltd. and Int’l Union of Brewery, Flour, Cereal, Malt, Yeast, Soft Drink and Distillery Workers, Local 278C (1954) 5 LAC 1797 (Laskin) in the following terms at p. 1798:

It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement where the dispute involves the interpretation of the Agreement. Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case before it on principles that it believes are applicable.

We are in agreement with this general principle. To permit every question of construction to arise again and again would destroy any finality in the arbitration process and would lead to a situation in which arbitration awards on the interpretation of a collective agreement would be written on water, good only for the resolution of a specific grievance, and of no value to the parties whatsoever in ordering their on-going relationship.

23. The rule is always subject to overriding considerations, particularly where the arbitrator is convinced that the previous decision is incorrect because it has failed to deal with matters of substantive importance. As arbitrator V. Solomatenko put it in Re Toronto Transit Commission and A.T.U. 1999 CanLII 35949 (ON LA), 79 LAC (4th) 85 at p. 92:

Inasmuch as the Saltman award has already dealt with the very issue being raised in the matter now before this Board it is understandable that the union wishes to emphasise the policy reasons for not providing conflicting decisions. Furthermore, prior to the release of this award, counsel for the union provided the Board with a copy of the recent majority decision of an arbitration board dealing with the identical issue between these same two parties…[the “Johnson award”] which in essence deferred to the decision of arbitrator Saltman. As will be evident shortly, I have declined to follow both the Saltman award and the Johnson award. I appreciate the difficulty this may cause the parties to have conflicting results on the same question. I would hope, however, that the analysis of the issues raised by this matter which follows will demonstrate that there are more substantial legal principles involved than simply an arbitral policy of maintaining consistency.

24. The two awards referred to by counsel were not proceedings between the union and Vollmer. On the other hand, they are arbitrations under a Provincial Collective Agreement, which is, ultimately, between the two EBAs. The union was represented by counsel for the Ontario Sheet Metal Workers Conference, part of the employee bargaining agency. The OSM, the employer bargaining agency, “took carriage” of the Giffen and Baird grievances and represented that employers at arbitration. These factors give the decisions greater weight than if they were simply decisions between a local union and one employer. That is, the parties most clearly identified with the words in the agreement joined issue with one another before an arbitrator.

25. The position of Vollmer is that it was not a party to the Giffen decision and should have no greater weight than any other arbitral decision. The Board does not accept that proposition. Vollmer would have been quite happy with the OSM’s efforts had the decision gone the other way, and would no doubt have relied on it as a defence to the grievances filed on the same subject. The Board does not wish to undermine a process where the EBAs agreed to litigate an issue and to advise all members of the results so that the collective agreement is interpreted and applied in a uniformed fashion. That is, after all, what section 162 of the Act mandates. Accordingly, Vollmer’s lack of participation in the Giffen arbitration process does not affect the weight the Board will give it.

26. Counsel for Vollmer suggested a second reason that the Board should not give any special weight to the Giffen decision. He argued that the grievance represented a political problem, and that had the arbitrator heard the grievance as a Vice-Chair of the OLRB there would have been a “tightening of the political controls”. Counsel declined to elaborate on this statement. I do not know what this submission means and give it no weight.

27. In this case, the Board is prepared to treat the decision with much the same deference that an arbitrator would give to a decision between the same union and the same employer on the same issue. However, the union goes too far in suggesting the Giffen decision should be given almost binding authority. He argues that the notice to the Windsor area contractors (Bulletin 29-99) was a “directive” from the OSM which has almost the same force as an amendment to the collective agreement. The Board finds that it was not. The notice is simply an example of the EBA discharging its duty to represent all contractors active in the Windsor area. It fought the case. It lost. It conveyed to all contractors in the area what it understood the effect of that decision to be. This kind of advice is not a “directive”. The Board has no evidence about what authority the OSM has to issue binding directives on its members. Nothing in the Act gives an employer bargaining agency such authority, although since 1978 typically both employee and employer bargaining agencies have evolved into more highly centralized decision-making entities. Under the statute, the only way an EBA may make a decision which binds an individual employer is to execute an amendment, addendum, or letter of understanding forming part of a provincial collective agreement. It certainly began the process to do so here, but was unable to complete the process.

28. Counsel for the union referred to two decisions in support of his assertion that “when an EBA issues a directive about payment required by a provision in a collective agreement to an individual, an individual employer is not free to do otherwise”. The Board does not agree that these decisions stand for that proposition. The first is Enerdry Contractors Ltd. [1998] OLRD 942. In that case, the Board found simply that a provincial collective agreement must be amended only by the two EBAs, and that a local contractor’s association or individual contractor may not unilaterally or even with the consent of the local union, agree to different terms and conditions than those set out in the provincial collective agreement. In Ontario Sheet Metal and Air Handling Group [1998] OLRD 4383, the case turned on an application of the doctrine of estoppel. In that case, the Board found that the employer bargaining agency, one of the signatory parties to the collective agreement, could by its conduct create a situation to which the doctrine of estoppel should be applied.

29. Alternatively, counsel for the union argued that the bulletin of the OSM revealed the intention of the parties. Assuming that there is an ambiguity that needs to be resolved by recourse to such extrinsic evidence, this evidence does not assist the union. It is a statement after the fact of an arbitration award describing what that award says. Presumably the arbitration occurred because the EBA thought the collective agreement meant something else. The notice is simply a report on the arbitrator’s finding. Such evidence is not and could not be evidence of the OSM’s intention.

30. Although the Giffen Decision was the most recent in time, Vollmer relied on the Baird decision for much the same purpose. This was a decision of this Board: Ontario Sheet Metal and Air Handling Group on behalf of Giffen Sheet Metal and A. G. Baird Limited v Robert Brown, Sheet Metal Workers’ International Association Local 473 and Ontario Sheet Metal Workers Conference (Board File No. 0373-85-M, unreported, October 3, 1985). This decision dealt with the same issue arising out of a dispute in London. While the Board examined a different appendix of the collective agreement (a significant difference) it did interpret and apply Article 25.2 of the Body of the Agreement, the very Article alleged to have been violated in this case. Accordingly that decision too commands the same deference from me.

31. Unfortunately it did not receive the same deference from the arbitrator in Giffen. As is evident from what follows, the result in the two cases is not necessarily irreconcilable, although the reasoning contained in them is. The criticism of the Baird decision in Giffen, concerning a matter which is, in my view more a matter of a poor choice of words than an error of interpretation, led the arbitrator to interpret Article 25 in a manner which I find is incorrect.

32. What we have then, are two decisions dealing with much the same subject matter which are inconsistent in the manner in which they interpret the collective agreement. While I am of the view that certainty in the application of the terms of a multi-employer collective agreement such as a Provincial Collective Agreement is very important, it is difficult to apply that principle in this case.

Merits of the Grievance

Structure of the Agreement

33. This is a provincial collective agreement. Like most provincial collective agreements, it is composed of certain portions which apply across the Province and operate as a framework for the entire agreement. Within that framework are found certain appendices which deal with specific sub-categories of the trade or with specific geographic areas. In this case, there are three portions of the collective agreement to be considered.

34. First is the “Body” of the agreement. This applies in all cases, subject to certain limitations described below. Provisions in this portion of the collective agreement are called “Articles”. There is a collection of wage schedules which contain some information, primarily monetary, which are set out in schedules which correspond to the 13 appendices. Finally, there are the 13 appendices which deal with the sheeter and decker sub-category (“Appendix “A”) and the 12 local geographic areas. Provisions of the appendices are referred to as “Clauses”. Appendix “M” applies to Windsor.

35. The relationship between the Body of the agreement and an Appendix is described in Article 1.2 of the Body of the agreement which provides as follows:

To the extent that an appendix covers matters dealt with in the body of this agreement, the terms of that appendix shall govern for its relative geographic area or segment of the sheet metal industry. To the extent that an appendix is silent on such matters, the terms and conditions set out in the body of this agreement shall govern.

Shift Work on Weekends

36. The argument focuses on Article 25.2 of the Body of the agreement, although it is necessary to refer to the entire Article 25 to give it meaning. Article 25 provides as follows:

25.1 All hours worked on a Saturday, Sunday or Holiday shall be paid at two times the hourly rate.

25.2 Overtime on shift work shall be paid at the applicable shift hourly rate including premium. All shift work performed between 8:00 a.m. Saturday and midnight Sunday and/or between 12:01 a.m. and midnight of a Holiday shall be paid for at two times the hourly rate including the applicable premium.

25.3 Overtime on irregular hours shall be paid at the applicable hourly rate plus the irregular hours’ premium for all hours worked in excess of the number of hours provided for the regular working day in the relevant Appendix.

25.4 Employers’ contributions for overtime shall be paid on hours worked.

All other language and conditions as set out in clause 13 of Local Appendices.

Curiously, although Article 25 is headed “Overtime”, it does not define the overtime rate. That is done in each Local Appendix. Article 25.1 provides that all hours worked on Saturdays, Sundays and Holidays are paid at double time. Work done on Saturdays, Sundays and Holidays is not defined as overtime or as any other type of work. Article 25.1 simply says hours worked on those days attracts a double-time rate. Article 25.2 (the first sentence) and Article 25.3 deal with two premiums: overtime and shift work or overtime and irregular hours’ premium, making it clear that not only are both overtime and a premium to be paid, but the premium rate is to be multiplied by the overtime factor as well (i.e. 1.5 or 2).

37. The last sentence of Article 25.2 deals with shift work on weekends. Contrary to what the employer argued, weekend work is not “overtime”. If it were, the second sentence of Article 25.2 would be redundant. The sentence deals with what occurs when there is “shift work performed” on Saturdays, Sundays and Holidays which already attract a double-time rate. The sentence provides that when shift work is performed on weekends, the rate to be paid is double the regularly hourly rate “including the applicable premium”.

38. In the context of that sentence, the word “applicable” refers to shift premiums, and perhaps the foreman’s premium. There are three types of premiums in the wage schedule: foreman’s premium, irregular hours’ premium, and shift premium. Article 24.2 makes it clear that shift work and irregular hours are mutually exclusive concepts. Therefore, Article 25.2 which deals with shift work does not cover irregular hours. The foreman’s premium may be referred to in Article 25.2 as well (although since I heard no argument on this possibility, I express no view). If the Article does cover that form of premium, that premium is peculiar to specific individuals and clearly not the focus of the sentence. Therefore, the “applicable premium” refers to a shift premium (and perhaps the foreman premium as well)

39. The employer’s argument is begins with an assertion that a shift premium can never be dealt with in Article 25 of the Body of the collective agreement or Clause 13 of Appendix “M”. That is because, in the employer’s analysis, Article 25 is an “overtime” Article and not a shift premium Article. Shift premiums are, it is asserted, “the exclusive domain of Clause 12”. Since Clause 12 refers to shifts only on Monday through Friday, there is no shift premium payable on a Saturday, Sunday or Holiday.

40. This argument is too mechanical. Article 25 deals with overtime work and with weekend work. As noted above, the two are different concepts. Article 25 does not deal with overtime per se (the overtime rate is not even defined in Article 25), but with the effect of both overtime, or Saturday, Sunday and Holiday work, with other premiums in the collective agreement: foreman, shift work and irregular hours premiums. Article 25 deals explicitly with shift premium and irregular hours premium. It provides that those premiums, when applicable, shall be included in the rate for the purposes of calculating the 1.5 or double-time rate to be paid for overtime or on Saturdays, Sundays and Holidays.

41. Article 25.2 is found in the Body of the agreement. By virtue of Article 1.2, any provision of the Body may be overridden by a provision in Appendix “M”. This was the analysis and the result in the Baird decision based on the wording of Clause 13 of Appendix “D” (London). Both parties agreed that no shift premium is to be paid for work on Saturdays, Sundays or Holidays in Chatham (also a part of Appendix “M”). That is because Clause 13.4 provides in part:

On Saturdays the first 8 hours worked will be paid at the rate of time and one half and thereafter all hours worked will be paid at the rate of double time.

Hours worked on Sundays and holidays shall be paid at the rate of double time.

That is, both parties accept the proposition that an explicit statement in Clause 13 which sets out a specific rate for hours worked on Saturdays, Sundays and Holidays is a provision which “covers the matter dealt with in the Body of the agreement” and, by virtue of Article 1.2, overrides anything found in the Body of the agreement, in this case specifically Article 25.2.

42. I heard a great deal of argument with respect to the interpretation of Appendix “M” in its own right and in comparison to the provisions of every other Appendix to the collective agreement. For the purposes of the analysis of the agreement that I find to be appropriate, this argument was not at all helpful. In the end, both parties agree that Appendix “M” is silent on the issue. Accordingly we must look to Article 25.2 of the Body of the agreement to answer the question posed by this grievance

43. The union argues that Article 25.2, standing alone, answers the question. That is, Article 25.2 provides for a shift premium on Saturday, Sunday and Holidays, and since this is not overridden by Appendix “M”, there is nothing which eliminates the payment of premiums as set out in Article 25.2. It is certainly possible to understand why the union makes this argument. In Baird, the Board records the employer’s argument as being that:

“The applicants [the employers] concede that if that [Article 25.2] was the governing provision in the collective agreement then their grievance would fail because employees of the applicants worked Saturday, Sunday, and holidays. However, the applicants point out that there are appendices to the main body of the collective agreement ….”

Presumably the OSM did not make that argument in the Giffen arbitration.

44. In Giffen, the arbitrator concluded:

There is therefore nothing in Appendix “M” which ousts Article 25.1 or 25.2 of the Body of the agreement. As I have already concluded, these latter provisions provide that all shift work on Saturdays, Sundays or holidays, which the work in issue herein was, is to be paid as double the hourly rate including the applicable premium. In this case, consistent with both general principles of the scheme of this collective agreement, the applicable premium is the shift premium.

45. When both the OSM argued (apparently) this proposition in an earlier case, and an arbitrator in a recent decision has decided on the proper interpretation of a collective agreement, a subsequent arbitrator should be loathe to come to a different conclusion. However, with all due respect to both the persons involved and the process, this analysis appears to assume the answer rather than asking the question.

46. The word “applicable” directs the reader elsewhere. There must be some other provision of the collective agreement which defines certain hours of work as a “shift”, which makes a premium payable for that shift and which can be demonstrated to be “applicable” to any particular fact situation. Implicit in that analysis is the possibility that no shift premium may be applicable. Most of the Appendices do appear to override Article 25.2. However mere silence does not answer the question posed by the word “applicable”. There must be some other provision of the collective agreement which defines the shift, defines the premium, and specifies when the two apply. Otherwise there is no “applicable” premium.

47. The analysis in Giffen appears to be, to some extent driven by a reaction to the incorrect (and given the clear provisions in Clause 13 of Appendix “D”, unnecessary) analysis of the shift provisions of Clause 12 of Appendix “D” in Baird. In that case the Board said at paragraph 11: “Clause 12.2 eliminates all shift worked on Saturdays and Sundays”. This is not entirely correct. What Clause 12.2 does is to define shift work hours in terms which exclude Saturdays, Sundays and Holidays. There is nothing in Clause 12.2 which “overrides” Article 25.2. On the other hand, it also does not provide any definition of shift work or shift work “premium” which could be applicable to work performed on Saturdays, Sundays and holidays. However, even if one accepts the analysis of the Baird decision, what the Board meant by that sentence was that Clause 12.2 eliminates a shift work premium on Saturdays and Sundays. That is, the Board found that the Article was one which specifically provided for the circumstances contemplated by Article 25.2 and, pursuant to Article 1.2, overrode the provisions of Article 25.2.

48. However, the arbitrator in Giffen criticized this analysis as follows:

With great respect to the OLRB in [Baird] I am unable to see how it arrived at the conclusion that this clause eliminates shift work on weekends, particularly when it was clear from the agreed facts before the Board that both of the employers involved had in fact scheduled shifts on the weekend, and no one (it appears) suggested that that was improper. Yet the Board appeared to ignore this, and the principles that both apply generally and run through this provincial agreement; that is, that premiums are to be paid when work is scheduled at other than “regular” hours, Monday through Friday. In the result, the Board found that employers under Appendix “D” could pay employees at a lower hourly rate (albeit at double time) for working a de facto second or third shift on a weekend or holiday than for working the same hours during the regular workweek. This result is inconsistent with general labour relations principles and is not required by the words of Appendix “D”.

49. With respect, this analysis goes too far in the other direction. The task for an arbitrator is to interpret the words used by the parties, not to lay down general labour relations principles. The word “shift” has a common dictionary meaning which includes a number of hours which constitute a full day’s work (e.g. “day shift” or “night shift”). However, to talk about a “de facto” second and third shift is unhelpful. Presumably, the “de juris” second and third shift are the shifts defined by the private law of the parties, i.e. the collective agreement. It is necessary to find words in the collective agreement which define “shift” and which provide the financial consequences for scheduling employees to work on a particular shift.

50. Article 25.2 makes it clear that shift work may be scheduled on weekends and may attract a premium rate, if applicable. The task for an arbitrator is to find words that define what those shifts are and to define what the premiums are to be paid. The meaning, however, must come from the collective agreement itself.

51. Turning to this task, the union agrees with the employer that there is nothing in Appendix “M” which defines shifts. The union also argues, correctly in my view, that there is nothing in Appendix “M” which, in the Windsor portion, overrides Article 25.2 to the extent that no shift premium is payable. That is, the Appendix is silent on the matter. To this point, the reasoning in the Giffen decision is correct, and I agree with it. However, there is a final step which the arbitrator appears to have assumed, rather than analyzed, and it is that step which is crucial to the success of the grievance.

52. What is necessary is still to identify some provision in the collective agreement which defines a shift and a premium and makes them “applicable” to the facts of this case. The union points to the wage schedule which is part of the collective agreement as the source of information about shift premiums. The wage schedule is set out in schematic rather than sentence form and provides simply:

Shift Work Premium Journeyman: 2nd shift: $4.525 per hour

3rd shift: $9.05 per hour

Apprentices: at appropriate percentage

53. This portion of the collective agreement certainly defines what the premium is. However, the words “second shift” and “third shift” are otherwise undefined. When asked by the Board how these words could be translated into particular hours of the day, counsel for the union suggested that this was simply an ambiguity in the collective agreement which would need to be defined by reference to area practice. He asserts that this is not the only place in the collective agreement where this occurs. He refers to Toronto (Appendix “K”) and Waterloo (“Appendix “L”), both of which provide for a second and third shift in the wage schedule, but neither of which defines the hours for the second and third shift, even on regular weekdays. That is, there is a definition of regular hours of work in Clause 10 in both appendices, but nothing that would indicate to the reader when the second shift starts and ends or when the third shift starts and ends. I heard no evidence about how shifts were determined under Appendix “K” or Appendix “L”.

54. On Saturdays, Sundays and Holidays under those two appendices, it would appear to be irrelevant, although it is very relevant during the week.

55. In Schedule “M” we have a different situation. Shifts are defined in Article 12.1 as follows:

A seven-hour second shift may be worked between the hours of 4:30 p.m. and 11:59 p.m. Monday to Friday.

A seven-hour third shift may be worked between the hours of 12:01 a.m. and 8:00 a.m. Monday through Friday.

When giving meaning to the words “second shift” and “third shift” in the wage schedule, clearly this is the meaning those words have from Monday to Friday. On Saturdays, Sundays and Holidays, what meaning is to be given? We heard that Vollmer has never paid a shift premium and that Giffen had paid shift premiums on weekends. We heard that OSM’s view of practice in the Windsor area was such that they did not raise an issue of area practice in the Giffen case. It does not appear that “area practice” is likely to help very much. To give the terms “second shift” and “third shift” on Saturdays, Sundays and Holidays the same meaning that it has Monday to Friday is to ignore the restriction found in the definition of a shift in Clause 12.1. To give it a different meaning on Saturdays, Sundays and Holidays would be to give the same words in the same place in the collective agreement a different meaning, with no basis in the collective agreement for doing so.

56. When asked to specify the hours of second and third shift in argument, counsel for the union was unable to do so but suggested generally that the second shift would cover the afternoon hours and the third shift would encompass and go beyond midnight. That was, in the circumstances, the best answer counsel could give and I am not critical of him. However, it underlines the flaw in the union’s argument. There are simply no words in the collective agreement (other than perhaps the reference to the “foreman’s premium”) which can give the phrase “applicable premium” any meaning. I therefore conclude that there is nothing in the collective agreement which defines a shift on Saturdays Sundays and Holidays, or makes it applicable to work performed on those days. Therefore there is no shift premium above the (doubled) regular hourly rate which is payable on Saturdays, Sundays or Holidays in the Windsor area.

57. It is with regret that I come to a conclusion different from that of the arbitrator in Giffen. If it were simply a question of a different analysis of what the words “applicable premium” refer to, I might for the sake of consistence and predictability, have declined to disagree. In this case, I believe that the Giffen decision is clearly wrong, and is so because it fails to address the central question which must be answered to determine the meaning of the collective agreement to resolve this grievance. I find therefore that Vollmer was not obligated to pay a shift premium for any of the hours worked on Saturdays, Sundays and Holidays beyond the double-time rate. The grievances alleging a violation of the collective agreement in Board File 0871-00-G and 2400-00-G are therefore dismissed.

58. Counsel suggested in this case that, if the collective agreement did not provide for shift work on weekends, then it would not be possible for the employer to schedule any work outside of regular working hours on Saturdays, Sundays or holidays. I disagree. The collective agreement does not regulate when employees may be assigned to work. It does define what they are to be paid. Sometimes that varies with the time of day the work is performed. On Saturdays, Sundays and holidays, it does not. Nothing in the collective agreement in Windsor or in this decision restricts the employer from scheduling work at any hour of the day on a weekend.

Deductions from Wages – Board File No. 0576-00-G

59. There is one final issue to be dealt with in Board File No. 0576-00-G. As noted, Vollmer paid a shift premium for work on two weekends in December 1999 and January 2000. When Brad Vollmer was informed that this had occurred, he instructed the company’s payroll department to deduct those amounts from the paycheques of the same individuals for the week ending January 15, 2000. His justification was that the company had paid those sums in error in earlier weeks and he was simply recovering money from those who, he believed, owed the company the money.

60. This is called a set-off. Set-off from wages is unlawful, except in certain circumstances not applicable here. Section 8 of the Employment Standards Act provides as follows:

61. Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to the employer, or accept, directly or indirectly, any wages payable to an employee.

The relevant Regulation is section 14 of the General Regulation which provides as follows:

14. (1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,

(a) a statute so provides;

(b) an order or judgment of a court so requires or

(c) subject to subsection (2), a written authorization of the employee so permits or directs.

(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.

(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act.

Section 8 applies. Section 64.5 of the Employment Standards Act requires employees covered by a collective agreement to litigate claims under the Employment Standards Act through the grievance and arbitration process in that collective agreement. This is what those employees have done through their union in Board File 0576-00-G.

61. The analysis of this portion of the grievance is quite simple. Employees were owed certain amounts of money for work performed in the week ending January 15, 2000. Vollmer acknowledges that they were owed that amount for the work performed in that week. It would have paid them that amount but for a matter arising from payments made in respect of wages for previous weeks. After those payments had been made, Vollmer decided that those wages, which had been paid in past weeks, and specifically the weekend premium rates, were not “payable” in those weeks under the terms and conditions of the collective agreement. However, the full week’s wages for the week ending January 15, 2000 were “payable”. Vollmer did not pay that full amount. The reason it offers, i.e. the set-off, is not a lawful reason for failing to pay all of the monies owing. Therefore, the grievance succeeds.

62. The employer cited District of Parry Sound Social Services Administration Board v. OPSEU Local 324, [2000] OJ 475 for the proposition that section 48(12)(j) of the Labour Relations Act, 1995 does not confer on a board of arbitration an “independent” right to enforce rights under other employment-related statutes, but simply to apply those statutes in dealing with a question arising under the collective agreement. In this case, the Board’s authority arises from section 64.5 of the Employment Standards Act, not section 48(12) (j) Labour Relations Act, 1995.

63. The employer argued that, if it were successful with respect to its interpretation of the collective agreement, it would be inappropriate to order a remedy which amounted to a “breach” of the collective agreement. Even if I were to accept that characterization (which I do not), it is clear that the parties may not, by private agreement, contract out of the Employment Standards Act.

64. The employer was not without a remedy. It could have filed a grievance seeking re-payment of the monies from those employees: Electrical Power Systems Construction Association, [1993] OLRB Rep. Mar. 276 (Divisional Court). That case is reinforced by decisions of various courts since Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 SCR 929 seeking to channel disputes arising out of collective agreements to a single source of adjudication. Vollmer chose not to do so. There is some expense in the filing fee and the daily hearing fee. There is some inconvenience in being required to file the application. The policy of the Employment Standards Act is that the expense and inconvenience of litigating a dispute about whether an employee has been paid too much money in any week is to be borne by the employer – the party which was in control of the payroll process in the first place. In this case, although I have found that the employer was ultimately successful, the outcome of the dispute was hardly certain on January 15, 2000.

65. Vollmer could easily have filed a grievance and sought to consolidate a referral with the litigation of these grievances. It chose not to do so. Therefore, I have nothing to adjudicate except the union’s grievance about the week ending January 15, 2000. There is no doubt that Vollmer owed money for wages which were “payable” for the work performed in the week of January 15, 2000. It did not pay all of that money to certain employees that week. Its reason for failing to do so are not lawful, and there is no legal proceeding before me which would enable me to adjudicate Vollmer’s claim.

66. Vollmer is therefore ordered to provide the Board and the union with a statement of the amounts of money deducted from the wages of each employee for the week ending January 15, 2000. This information is to be provided within 7 days of the date of this decision. On the same day, Vollmer is directed to pay to the union, in trust for its members, the full amount of monies deducted, with interest at the rate of 5% per annum (the rate set out in the Courts of Justice Act for the first quarter of 2000) from January 15, 2000 to the date of payment.

67. If there is any dispute as to quantum, the parties may address the Board in writing.

“David A. McKee”

for the Board