IN THE MATTER OF AN ARBITRATION BETWEEN
COLLEGE OF NEW CALEDONIA (the “Employer”)
AND
FACULTY ASSOCIATION OF THE COLLEGE OF NEW CALEDONIA (the “Union”)
RE: B. MASSEY GRIEVANCE
APPEARANCES: Matthew Larsen, for the Employer
Leo McGrady, Q.C., for the Union
ARBITRATOR: Mark J. Brown
DATES OF HEARING: November 13 and 14, 2018
I. ISSUE
This case involves the interpretation of Article 10.18.2, which states:
Upon achieving eligibility for the Non-Regular Seniority List, faculty employees shall be entitled to professional development time.
a. Professional development for sessional appointments shall be calculated at the rate of two (2) working days for each instructional month of the appointment, with the total number of days rounded.
b. Professional development for part-time appointments shall be calculated at ten (10) percent for the total hours of the appointment.
Professional development time shall be non-cumulative from one working year to another, and any unused entitlement shall be forfeited.
Other Collective Agreement provisions that will be referenced in this Award are as follows:
6.6.1
a. A faculty employee who has completed twenty-five (25) cumulative weeks of appointment at the same campus, who has received no unsatisfactory evaluations, and who is given a
reappointment to a further position within eight (8) calendar months from the completion of the last appointment shall be entitled to the recall rights established in 6.6. For the purposes of Article 6.6, appointment durations include preparation, professional development and vacation time. Both consecutive and intermittent positions (exclusive of sessional positions of four (4) weeks or less separated by five (5) months or less must count towards this total. Any extension of four (4) weeks to an appointment constitutes a reappointment.
14.8.1
Part-time faculty employees on the Non-Regular Seniority List who are presently on a contract of ten (10) weeks or more duration shall be entitled to participate in the following benefits (subject to carrier conditions). Participation is compulsory except where the employee can demonstrate equivalent coverage for self and dependants:
i. Medical insurance
ii. Extended health coverage iii. Dental insurance
The College shall pay 100% of the premiums for medical insurance, extended health coverage and dental insurance for part-time faculty on the Non-Regular Seniority List, who shall also be entitled to Part C 9orthodontics) under the dental plan.
For purposes if this Award, I will refer to the “reappointment to a further position within eight (8) calendar months from the completion of the last appointment” under Article 6.6.1.a. as the “reappointment contract”. The Non-Regular Seniority status achieved under Article 6.6.1.a. shall be referred to as the “NRS Status”; and, the Non-Regular Seniority List shall be referred to as the “NRSL”.
The Union asserts that the Grievor, B. Massey, was entitled to professional development (“PD”) for the reappointment contract. The Employer asserts that
employees are entitled to PD on the subsequent contract, after they are actually placed on the NRSL.
II. BACKGROUND
The parties are scheduled to commence collective bargaining for a renewal Collective Agreement in January. Because this Award involves an interpretive question, and therefore may have an impact on negotiations, I am issuing the Award in an expedited fashion.
The material facts can be set out briefly.
Under Article 6.6.1.a, a faculty employee achieves NRS status by meeting three criteria. First, a faculty employee must have completed twenty-five (25) cumulative weeks of appointment at the same campus. Second, the employee must have received no unsatisfactory evaluations. Third, the employee is given a reappointment to a further position within eight (8) calendar months from the completion of the last appointment i.e. the reappointment contract.
It is not disputed that Massey met the three criteria based on his reappointment contract which was for the term August 26, 2016, to July 31, 2017. He was not given PD.
The Union does not receive copies of any contracts from the Employer, despite requesting same, and proposing at negotiations that they receive them.
The Union grieved the fact that Massey did not receive PD in the fall of 2017 when it learned for the first time that he did not receive it.
The following negotiating history and past practice evidence was put before me. In the renewal collective agreement negotiations in 1998, the parties struck a
committee that agreed to a Letter of Agreement (the “1998 LOA”) which encompassed amending collective agreement provisions to merge two seniority lists.
In the 1998 LOA the parties agreed to eliminate what was then Article 5.2.2. It stated in part that:
A faculty employee who has completed an appointment to a sessional position of at least six (6) months’ duration in the twelve (12) calendar months preceding a second sessional
appointment shall also have prorated professional development time included in the term of the second sessional appointment. All subsequent appointments shall have prorated
professional development.
Article 5.2.2. was eliminated and replaced with the current Article 10.18.2.
position that while under the old Article 5.2.2. which obligated the Employer to provide PD for the “second sessional appointment” (which would be equivalent to the
reappointment contract in the case at hand), the new Article 10.18.2. does not contain such an obligation.
In 2006 the Employer commenced using a “Non Reg Seniority List Tracking”
document. On the 15th of each month, faculty were put on the list when they received a reappointment contract. The formal NRSL is updated in May and October of each year. After a faculty member is placed on the list, he / she would receive PD on the subsequent appointment contract, which would be the employee’s third contract. From November of 2006 to February of 2018, the above noted list shows
approximately 230 employees who did not receive PD but would have if the Union’s interpretation is correct.
Documents generated by the Employer, that were distributed internally, and in some cases provided to faculty who questioned the status of benefits on contract
reappointments, reflected the Employer’s position. The documents were not approved by the Union nor were they distributed directly to the Union.
There have been no grievances since 1998 until the case at hand on this issue.
There were grievances related to benefit entitlement under Article 14.8.1, however the grievances did not specifically reference the issue in the case at hand.
III. ARGUMENT
Briefly stated, the Union argues that the Employer has unilaterally amended the Collective Agreement by not providing PD during the term of the reappointment
contract. The Employer is attempting to to create ambiguity in the Article by referring to the pre 1998 language.
The Union argues further that the Employer’s response to the grievance is
contradictory. Initially the Employer said that Massey did not meet the criteria under the terms of the Article. However, at the hearing the Employer argues that PD is not
provided under the reappointment contract.
Anticipating an estoppel argument from the Employer, the Union argues further that estoppel principles have not been met as the Union was not aware that PD had not been provided in the past. The Union’s silence cannot be taken as acquiescence. In support of its arguments the Union cites: British Columbia Public School Employer’s Association v British Columbia Teachers’ Federation, 2014 CanLII 38239 (BCLA); and,
Insurance Corporation of British Columbia and Move-Up Together, February 14, 2018, (McEwen).
The Employer argues that the language is ambiguous on its face. The Employer argues in the alternative that the historic language of the Collective Agreement, and the past practice reveals a latent ambiguity.
The Employer argues further that monetary benefits must be expressly stated in the collective agreement.
The Employer argues further that if the Union’s interpretation is upheld, given the Employer’s longstanding practice, the Union should be estopped from relying on the Article.
The Employer cites the following cases to support its arguments: OK Ready Mix Ltd v. Teamsters Local Union No. 213, [2005] B.C.C.A.A.A. No. 218; Teck Metals Ltd v. United Steelworkers, Local 480, [2013] B.C.C.A.A.A. No. 126; and, Western Forest Products Inc. v. United Steelworkers, Local 1-1937 (Nanaimo Sawmill / Planer Grievance), [2012] B.C.C.A.A.A. No. 42
IV. AWARD
The principles to be used for interpretation of a collective agreement are set out in Pacific Press v. Graphic Communications International Union, Local 25-C, [1995] B.C.C.A.A.A. No. 637:
1. The object of interpretation is to discover the mutual intention of the parties.
2. The primary resource for an interpretation is the collective agreement.
3. Extrinsic evidence (evidence outside the official record if agreement, being the written collective agreement itself) is only helpful when it reveals the mutual intention.
4. Extrinsic evidence may clarify but not contradict the collective agreement.
5. A very important promise is likely to be clearly and unequivocally expressed.
6. In construing two provisions, a harmonious interpretation is preferred rather than one that places them in conflict.
7. All clauses and words in a collective agreement should be given meaning, if possible.
8. Where an agreement uses different words, one presumes that the parties intended different meanings.
9. Ordinary words in a collective agreement should be given their plain meaning.
10. Parties are presumed to know about relevant jurisprudence.
With respect to the use of extrinsic evidence arbitrators most often refer to Nanaimo Times Ltd., BCLRB No. B40/96:
It follows that there is no requirement or pre-condition that a party seeking to adduce extrinsic evidence must first establish a bona fide doubt or an ambiguity on the face of the collective agreement prior to the arbitrator admitting the evidence. An arbitrator will accept the evidence when it is proffered (subject, of course, to the usual rules about relevancy and so on). The arbitrator is then able to consider both the language of the disputed provision and the extrinsic evidence when determining whether there is any bona fide doubt or ambiguity about the language of the agreement.
If the arbitrator decides, after considering both the collective agreement language and the extrinsic evidence, that there is no doubt about the proper meaning of the clause in question, the arbitrator then reaches an interpretive judgment without regard to the extrinsic evidence. See Pacific Press Ltd., BCLRB No. B97/94 (upheld on
reconsideration BCLRB No. B427/94) where the Board concluded that after considering the extrinsic evidence and finding the language of the collective agreement to be clear, the arbitrator did not need to (and would not be entitled to) resort to extrinsic evidence as an aid to interpretation. This amounts to the arbitrator effectively concluding: “I have considered all of the evidence, both the collective agreement and that which is extrinsic to the agreement, and conclude that what the language means is what it appears to mean to me on first reading.”
On the other hand, if an arbitrator concludes that when the language of the collective agreement is considered with the extrinsic evidence, there is some doubt about the meaning of the provision in dispute, the arbitrator is entitled to use extrinsic evidence to resolve the ambiguity or doubt, even in the face of collective agreement language that appeared clear when read in isolation: Finlay Forest Industries Ltd., BCLRB No.
B137/94. However, even in these circumstances, an arbitrator is not bound to base his or her decision on the extrinsic evidence simply because the language is somewhat equivocal. The arbitrator is trying to decipher the meaning which the parties mutually intended for the disputed contract language, and should not forget the actual language in concentrating on a mass of extrinsic material: U.B.C. Subject to the considerations in Board of School Trustees, School District No. 57 (Prince George), BCLRB No. 41/76,
with respect to the relative value of various types of extrinsic evidence as disclosing mutuality, an arbitrator’s assessment of the weight attached to extrinsic evidence is not properly the subject of review under Section 99: Board of School Trustees of School District No. 39 (Vancouver), BCLRB No. B386/95.
In our view, the use of “bona fide doubt” as opposed to “ambiguity” in U.B.C. is of no consequence; one term is not a more stringent standard than the other. Neither are required prior to admitting extrinsic evidence, and both express the notion that an arbitrator must find some doubt arising from the language of the collective agreement in the context of any extrinsic evidence.
The fundamental point, as we have emphasized, is that arbitrators approach their interpretive task with a full appreciation of the circumstances relevant to the disputed contract language. The arbitrator may then determine how, if at all, the extrinsic evidence is of assistance. For example, the collective agreement language may not admit of ambiguity, such that the extrinsic evidence is properly disregarded;
alternatively, where ambiguity is found, the evidence may be used as an aid to
interpretation. These aspects of an arbitrator’s reasoning should be evident on the face of the award (although there is no need for a rote analysis of the U. B. C. concepts). Beyond this, it is not the Board’s role to second guess the arbitrator’s assessment of ambiguity, the weight attached to the extrinsic evidence, or the interpretation of the collective agreement in light of the extrinsic evidence. (paras. 28-32)
The use of past practice evidence is set out in John Bertram & Sons Co. v. International Association of Machinists, Local 1740 (Greenwood Grievance) (1967), 18 L.A.C. 362 (Weiler):
A second use of “past practice” is quite different and occurs even where there is no detrimental reliance. If a provision in an agreement, as applied to a labour relations problem is ambiguous in its requirements, the arbitrator may utilize the conduct of either one of the parties, as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct (and, inferentially, this interpretation) be acquiesced in by the other party. If these facts obtain, the arbitrator is justified in attributing this particular meaning to the ambiguous provision. The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties. Such a doctrine, while useful, should be quite carefully employed. Indiscriminate recourse to past practice has been said to rigidify industrial relations at the plant level, or in the lower reaches of the grievance process. It does so by forcing higher
management or union officials to prohibit (without their clearance) the settling of grievances in a sensible fashion, and a spirit of mutual accommodation, for fear of setting precedents which may plague either side in unforeseen ways in future arbitration decisions. A party should not be forced unnecessarily to run the risk of losing by its conduct its opportunity to have a neutral interpretation of the terms of the agreement
Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear
preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on the meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice. (paras. 12-13)
With respect to the use of past practice evidence to argue estoppel, it is generally accepted that for the doctrine of estoppel to apply, these elements must be present:
1. There must be a representation, promise or assurance by the other party through words or conduct (including silence).
2. The representation was intended to be relied upon and was relied upon (intended to alter the legal relations between the parties).
3. There must have been a detriment or prejudice to the side who relied on the representation.
With respect to onus in cases involving a monetary issue, there is the Noranda Mines Limited, May 1981 (Hope), line of cases including cases cited by the Employer which stand for the proposition that the onus is on the Union to show clear and unequivocal terms, either by language or in conjunction with extrinsic evidence, that a monetary benefit was mutually agreed to by the parties.
Another line of cases argue that neither party bears any special onus: see for example, Pope and Talbot and CEP, Local 1092, [2006] B.C.C.A.A.A. No. 224; The Board of Education of School District No. 36 Surrey / BCPSEA and BCTF / Surrey Teachers Association, unreported March 6, 2009 (Korbin); and, Catalyst Paper (Elk Falls Mill ) v. Communications, Energy and Paperworkers Union of Canada, Local 1123 (Grievance 2010-3 Retiree Benefits), [2012] B.C.C.A.A.A. No. 73.
I conclude that most arbitrators today generally follow the latter line of cases. However, regardless of the cases applied my conclusion would be the same.
Article 5.2.2. under the pre 1998 Collective Agreement was clear that PD was provided in the second sessional contract. The 1998 LOA eliminated this Article and changed it to the current 10.18.2.
Under Article 10.18.2., PD is provided to the faculty member “upon achieving eligibility”. The parties have a mature collective bargaining relationship. The change in wording must be taken to mean something. If the parties had intended to leave the entitlement to PD the same, one would have expected the language to remain the same. It did not.
In another provision that provides faculty on the NRSL entitlement to benefits, Article 14.8.1, the trigger is being “on the [NRSL] who are presently on a contract of ten (10) weeks or more duration”. Collective agreements must be read as a whole; and, different language may lead to a different conclusion.
I do not find the 1998 collective bargaining notes, and Employer generated documents regarding the interpretation, to be persuasive as I have no direct knowledge evidence about the negotiations.
However, when I consider the long standing practice of the Employer in conjunction with the amended Collective Agreement provision, there is some doubt about the meaning of the language in question.
While I accept the Union’s evidence that it was unaware that PD was not being provided on the reappointment contract, that does not detract from the ambiguity created by the practice.
The question before me is when does the faculty member achieve eligibility for the NRSL. When that occurs, the employee is entitled to PD.
The Union argues that the employee is entitled to PD on the reappointment contract. The Employer argues that PD is included in the subsequent or third contract after the employee is placed on the NRSL.
The change in the language from the 1998 Article 5.2.2. to the current Article 10.18.2., in conjunction with the Employer’s practice leads me to conclude that there was a change in the application of when PD was effective.
However, eligibility is not based on placement on the NRSL, as specifically stated in Article 14.8.1.
Under Article 10.18.2, faculty are entitled to PD “upon achieving eligibility for the [NRSL]”, not when they are “on” the NRSL which does not technically occur until later. The eligibility criteria are set out in Article 6.6.1.a. The third criteria is the one in question in the case at hand. The employee must be “given a reappointment to a further position within eight (8) calendar months from the completion of the last appointment”. This reappointment contract can be for any length of time, a day or full-time.
When considering whether an employee achieves eligibility, it is not a prospective analysis. By that I mean that the Employer does not plan to offer an employee a reappointment contract and include PD by determining that if the employee accepts the contract they will have achieved eligibility.
I conclude that the employee must have accepted the reappointment contract in order to actually trigger the third criteria, and thereby achieve eligibility. Meeting the third criteria is not triggered by the Employer planning to submit an offer letter to the employee. It is triggered by accepting the contract. Until it is accepted, the employee has not achieved eligibility.
I would go further and suggest that until the employee commences work under the contract, the employee has not achieved eligibility. If an employee accepts a contract and then resigns before commencing work under that contract, the contract would not be considered for collective agreement benefits.
That being the case, after accepting and commencing the reappointment contract and achieving eligibility, PD is built into the next contract or the third contract.
Accordingly, the Union’s grievance is denied.
Even if the above analysis is wrong and I was persuaded that the Union’s interpretation was correct, I would have concluded that the equitable remedy given the long standing practice would have been to conclude that the Union was estopped from relying on the provision until the conclusion of the next round of collective bargaining.
In any event, given either analysis, it is clear that given the importance of PD to the faculty, and the economic impact of it, the parties will no doubt be discussing it and other benefits that may apply to reappointment and subsequent contracts during the upcoming negotiations.
“Mark J. Brown”
