IN THE MATTER OF AN ARBITRATION BETWEEN: HAMILTON POLICE SERVICES BOARD (The Board ) - and -

Transcription

1 IN THE MATTER OF AN ARBITRATION BETWEEN: HAMILTON POLICE SERVICES BOARD (The Board ) - and - HAMILTON POLICE ASSOCIATION (Active Police Personnel) (The Association ) AND in the matter of an Association grievance ARBITRATOR: William A. Marcotte APPEARANCES: FOR THE BOARD: M. Visentini, counsel Y. Sluchenkov, L.R. specialist FOR THE ASSOCIATION: G. Hopkinson/K. Allen, counsel C. Twolan, Assn. pres. D. Donn, Assn. v.-p. D. Arruda, L.R. officer B. Boyce, Assn. adm r. Hearings held in Hamilton on February 11 and 13, 2015.

2 2 AWARD In its August 25, 2014 grievance, the Association contends the Board breached the collective agreement by cancelling vacation signing between July 5 th, 2015 through to 26 th of July [correctly, July 25 th as stated in his letter to the Association of November, 2014] without offering offsetting vacation signing. Remedy sought, among other things, is for the decision to be rescinded and allow the [Association] members to either sign on the dates negotiated in the Collective Agreement or negotiate with the Association for alternate vacation signing opportunities The Board s position is there has been no breach of the collective agreement resulting from the following decision by the Chief of Police of which the Association was informed in correspondence dated August 7, 2014: Re: PanAm 2015 Annual Leave Signing for 2015 As you know per previous discussions, we have been preparing for the 2015 PanAm Games. While it would certainly be preferable to know exactly how the games will unfold, what venues will be involved and how those venues will operate, we are attempting to make decisions with the most current, accurate information while also ensuring members are provided with notice prior to the Annual Leave signing process beginning. We have had to prepare estimates of the number of members required to: provide security for the Stadium; provide security and respond to issues at McMaster if it becomes a second venue; and respond to any other events related to the Games that will impact policing requirements within the city. All of the above needed to be estimated while still maintaining our regular service to the community during the time period of the games, from Sunday, July 05 th 2015 to Sunday July 26 th [Emphasis in original.]

3 3 These estimates have been done within the context of what we know. We have had to grapple with several unknowns including:.. In spite of these limitations, however, we have determined that the Games will require staffing that exceeds the current compliment available if Annual Leave were to proceed as it normally does within the Collective Agreement. Consequently, we are notifying you of the requirement to cancel Annual Leave for sworn members from Sunday, July 05 th 2015 to Sunday July 26 th We will also simultaneously notify the Senior Officer s Association in separate correspondence of the same requirement. The parties are agreed the Association grievance raises two issues: (1) that certain provisions of the collective agreement prevent the Chief of Police from using a blanket prohibition against members taking annual leave for the period of time indicated in his August 7, 2014 correspondence and, (2) in the alternative, the Chief of Police did not exercise his discretion in a reasonable or non-arbitrary manner as required under the collective agreement provisions. In that regard, the Association does not take the position that the 2015 PanAm Games do not constitute an exigency under the terms of the collective agreement. The parties agreement is the hearing be bifurcated and this award deal only with the first issue. Further, should it be necessary to deal with the second issue, there is a dispute between the parties regarding production requirements which will arise for determination. Moreover, should the grievance be upheld on the basis of either issue, I am requested to remit the matter of remedy to the parties and remain seized of my jurisdiction should they be unable to resolve the matter themselves. The parties submitted the following AGREED STATEMENT OF FACTS: Background AGREED STATEMENT OF FACTS

4 4 1. The Hamilton Police Services Board ( the Board ) and Hamilton Police Association ( the Association ) are parties to the Active Police Personnel Collective Agreement dated ( the Collective Agreement ), which, pursuant to Article 44.1, will continue in effect until the parties adopt a new Agreement. 2. A copy of the Collective Agreement is attached as Tab 1 to this Agreed Statement of Facts. Under the Collective Agreement, the Association represents all uniformed police officers below the rank of Inspector employed by the Board. The Grievance 3. On August 7, 2014, the Chief of Police, Glenn De Caire, wrote to Michael Thomas, then President of the Association, advising that he was cancelling annual leave signing for sworn members for Sunday, July 5 th to Sunday July 26 th, This letter is attached as Tab 2 to this Agreed Statement of Facts. 4. On August 25, 2014, the Association filed a grievance alleging that the cancelling of vacation signing violated Articles 4 [sic] of the Collective Agreement. The Grievance Form is attached as Tab 3 to this Agreed Statement of Facts. 5. On November 3, 2014, Superintendent Dan Kinsella met with Association representatives to discuss the 2015 Annual Leave Signing Process. On November 7, 2014, Chief De Caire wrote to Mr. Thomas, amending, in certain respects, the decision of the Chief as set out in the August 7, 2014 letter. This letter is attached as Tab 4 to this Agreed Statement of Facts. 6. The parties have agreed to bifurcate the hearing so that the arbitrator can first determine an interpretive issue. The parties have agreed that any other issues arising from the grievance will be dealt with at a later stage of proceedings. Collective Agreement Provisions 7. The Management Rights Clause is covered by Article Hours of Work and Overtime is [sic] covered by Article 3 and Schedule H of the Collective Agreement. 9. Annual Leave is covered by Article 4 and Schedule H of the Collective Agreement. Certain subsections of Article 4 apply to all members in the bargaining unit, whereas other subsections of Article 4, and Schedule H, apply only to those members working a designated type of shift. Vacation Selection Process

5 5 10. Although, as set out above, separate provisions govern the vacation selection process for those on the different shift schedules, the parties agree that all members [Emphasis in original] sign for their annual leave dates according to the following process: a. In approximately October-November of each year, seniority lists and annual leave signing sheets are approved by the Human Resources Department and provided to the Stenographers. The Stenographer fills out the number of members per squad, unit, or Division that are allowed off per week pursuant to the Collective Agreement. b. In general, after the sheets are generated, members have up to three opportunities to select annual leave time for the following year in order of seniority within their respective squad, unit, or Division. Annual leave selections are generally made in one week blocks, with each block commencing on a Sunday, although certain members may take up to (1) week of annual leave one day at a time. c. During the first signing period, members are approached in order of seniority to select up to (2) two weeks of annual leave. Once all members in the squad, unit, or Division have selected (2) two weeks of annual leave, the second signing period beings. d. During the second signing period, members are approached in order of seniority to select all remaining weeks of annual leave. (How many additional weeks of annual leave a member is entitled to depends on their seniority, and is not at issue in this grievance.) e. During the third signing period, members are approached in order of seniority to select days off for statutory holidays or accrued time, if applicable. Effect of the Chief s Decision to Cancel Vacation Signing 11. The parties agree that the effect of the Chief s decision on August 7, 2014, as amended by the November 7, 2014 letter, was that July 3 [sic] - 25, 2015 were excluded from the 2015 signing sheets referred to in paragraph 7(a), which prevented officers from taking annual leave on those dates. At the commencement of the hearing, the parties referred to additional Stipulated Facts, to wit:

6 6 All squads work every week of the year. Reference was also made to two typographical errors in the collective agreement. However, the parties agreed that one such error would be set aside for purposes of this award. The remaining error is corrected by the following: 4.3(b) is to be taken on the basis of the member s seniority and [agreedupon inclusion] as scheduled The parties referred to the following provisions of the collective agreement (presented in part, herein, where applicable) under which the grievance arises: ARTICLE 1 PURPOSE, SCOPE AND MANAGEMENT RIGHTS Scope 1.3 The Board (a) recognizes that the members are actively engaged in the maintenance of law and order in the City of Hamilton (i) which is an essential public service Management Rights 1.4 (a) The Association and its members recognize and acknowledge that it is the exclusive function of the Hamilton Police Services Board: (i) to direct the working force which includes the right to direct, plan and control working operations and to schedule working hours ARTICLE 3 HOURS OF WORK AND OVERTIME Hours of Work 3.1 (a) Each member of the Police Service [sic] is to perform such police duties as are assigned, from time to time, to the member and in any event, such duties subject to the exigencies of the Service, are to be performed in each week,

7 7 (b)(i) For members working a twelve (12) hour shift schedule, except those working in uniform patrol, who are governed by the terms of Schedule H to this Agreement, normal hours of work shall be: (b)(ii) A member who works a twelve (12) hour shift schedule will work an average of forty-two (42) hours per calendar week. Hours in excess of the normal forty (40) hour work week are credited as (c)(ii) Without restricting the purpose of Article 3.1(c)(i), at the discretion of the Chief of Police, permanent changes to the 10 hour schedules may take place after a minimum of six (6) months notice to the Association. (iii) Temporary changes to the 10 hour schedule may take place when a specific exigency arises (v) All hours worked on a 10 hour schedule shall be consecutive hours and subject to the exigencies of the Service, there shall be one (1) seventy-five (75) minute lunch period (d) Where the exigencies of the Service do not permit a member to take a lunch period, the member will qualify for 3.2 A Duty List is to be posted at each Police Station. Once posted, and subject to the exigencies of the Service, the list is not to be altered 3.3 Where, as a result of exigencies of the Service, a member is assigned other duties 3.12 Subject to the exigencies of the service [sic] that prevents [sic] a member from taking the overtime prior to the end of the calendar year, such time shall be signed ARTICLE 4 ANNUAL VACATIONS WITH PAY 4.1 Each member shall be granted, except as otherwise expressly provided herein, an annual vacation with pay according to the member s aggregate credited service as follows: (a) Members whose employment ceases before the completion of one (1) year of service are to receive four percent (4%) of their respective earnings for such service exclusive of overtime and court time, and (b) Members with not less than one (1) year of service are to (c) (g) receive two weeks vacation with pay, and Members with not less than three (3) years of service are to receive three (3) weeks vacation with pay, and Members with not less than twenty-six (26) years of service are to receive seven (7) weeks vacation with pay 4.3 The vacation period for any member

8 8 (a)(i) is based on a normal work week (ii) the vacation period of any member is to be based on a standard forty (40) hour, five (5) day work week (b) is to be taken on the basis of the member s seniority [and] as scheduled from time to time by the Chief of the Hamilton Police Service and in the event that the principle of seniority is not adhered to or that the Scheduling is not acceptable to the Association, such matters may be the subject of a grievance within the terms of this Agreement 4.4. The vacation pay for any member is to be based upon the normal weekly salary paid per week 4.5 When a statutory holiday occurs during the vacation of a member, the said member is entitled to an additional day of vacation with pay but a member is to receive such additional day or days at a time or times that is or are subject to the exigencies of the Service The following provisions shall apply to those members working a twelve (12) hour shift except that Schedule H shall apply to all members working uniform patrol: (b)(i) Signing sheets will be posted that indicate the days on which a Squad is required to work and indicate the number of members entitled to take time off on each day. It will also include a list of Officers on the Squad in numerical order of seniority. (ii) For the purposes of Article 4.10 (b)(i) above the minimum number of members allowed off on annual leave per Squad at each station shall be determined using the chart outlined in Article (c) (d) (g) The members will sign by seniority. A member will be allowed to change days signed for by arranging a trade with another member within the Squad or by moving the date to an open spot, but notice must be given to the Command Officer. If a member signs on a third signing and as a result has Monday through Friday off, the member is entitled to block off the entire week for court purposes. [Note: Articles 4.11, 4.12 and 4.13 provide for, essentially, the same vacation signing processes as in art for members assigned to the Traffic Division and Community Reception Officers working the twelve/eight (12/8) hour shift schedule (art. 4.11), members working a 10-hour shift schedule (art. 4.12), and, members working a regular eight (8) or ten (10) hour straight day office hour schedule (4.13). Similarly, Schedule H, PATROL BRANCH SHIFT SCHEDULE provides for, essentially, the same vacation signing processes as in art. 4.10, at

9 9 article 4.10 and includes, at art. 4.10(a)(iii), an identical chart to the one that appears in art. 4.15(a) infra.] 4.12 (d) Members will sign by seniority Signing for the subsequent calendar year shall be completed as follows: (ii) Second signing for all remaining full weeks of annual leave entitlement (a) Subject to the eligibility requirements outlined in subsection b, the minimum number of members allowed off on annual leave at one time shall be determined by the chart outlined below. 1 to 7 (Eligible Members on unit/squad) 1 Member off per week 8 to 12 (Eligible Members on unit/squad) 2 Member off per week 13 to 17 (Eligible Members on unit/squad) 3 Member off per week 18 to 22 (Eligible Members on unit/squad) 4 Member off per week 23 to 27 (Eligible Members on unit/squad) 5 Member off per week 28 to 32 (Eligible Members on unit/squad) 6 Member off per week 33 to 37 (Eligible Members on unit/squad) 7 Member off per week 38 to 42 (Eligible Members on unit/squad) 8 Member off per week 43 to 47 (Eligible Members on unit/squad) 9 Member off per week (b) Officer eligibility per squad/unit shall be based on actual number of officers available for the street each year in advance. Individuals who fall into the criteria below will be removed from the calculation: (a) For the purpose of this Article, a Unit shall be defined as: (i) a signing group that perform [sic] similar jobs within a Division, Section, Branch or Unit. ARTICLE 6 ACTING RANKS, CAREER DEVELOPMENT AND CONFIRMED RANKS, COACH OFFICERS 6.2 Members assigned to perform the duties of a higher rank must be qualified. The Chief of Police, or designate, may make exceptions to this section based upon the exigencies of the Service.

10 10 ARTICLE 7 OFF-DUTY COURT ATTENDANCE 7.1 (a) Where a member is required to attend at court during offduty hours, the member is to be paid a minimum of four (4) hours at time and one-half (1½ ) hours at the member s normal (b) salary rate Where a member is required to attend court immediately after working any regular shift that finishes after midnight, the member is to be paid a minimum of four (4) hours at time and one-half (1½) hours at the member s normal salary rate 7.3 Where a member elects to accept (b) time off pursuant to sub-section (2) of this Section, such time off is to be allowed at the discretion of the member. This paragraph (b) is subject to the exigencies of the Service. ARTICLE 8 ASSOCIATION BUSINESS 8.3 For a member to qualify for time off a request in writing to the Chief of Police or his designate, must be received three (3) weeks in advance. It is agreed and understood that requests for time off for such [Association] activities shall be considered as a priority request and granted subject to the exigencies of the Service. ARTICLE 16 BEREAVEMENT LEAVE 16.3 The Chief of Police, subject to the exigencies of the Service, may grant a leave of absence without pay where a member wishes to attend the funeral of a person not mentioned in Article 16.1 ARTICLE 19 VOLUNTARY PAID DUTY ASSIGNMENTS 19.1 The rates payable to all ranks for authorized voluntary paid duty assignments shall be one and one-half (1½) times the normal hourly rate of pay for each rank ARTICLE 31 FAMILY RESPONSIBILITIES LEAVE

11 Subject to the exigencies of the Service, members may request the use of annual leave, accrued or overtime banked for emergency purposes only. SCHEDULE B CUMULATIVE SICK LEAVE PLAN 2. In the Plan (g) standard normal daily rate of pay means: (ii) in the case of salary paid members, the standard salary normally paid per week SCHEDULE H ACTIVE BRANCH SHIFT SCHEDULE PATROL BRANCH SHIFT SCHEDULE [Note: Article 4.10(a)(iii) contains a chart identical to the one in art. 4.15(a) in the non-schedule portion of the collective agreement.] Reference was made to the Police Services Act: 31. (1) A board is responsible for the provision of adequate and effective police services in the municipality and shall (c) establish policies for the effective management of the police force The Association submitted that the ordinary, plain meaning of the words used by the parties in art. 4.15(a) and art. 4.10(iii) of Schedule H (further reference shall be made to only art. 4.15(a) in that the two articles are identical) in particular, minimum, allowed off, shall, and, per week establish, in unambiguous language, that the prescribed number of officers off on vacation at one time is a requirement that is not subject to an exercise of discretion on the part of the Chief of Police. The use of the word minimum indicates that the number off cannot permissibly be less than that requirement. The use of

12 12 the phrase allowed off is a recognition of the members right to take vacation, and which right is mandatorily established by the use of the word shall. The expression per week means each week in the year, or stated otherwise, every week in the calendar year. In that respect, there is no modification of the word week as occurs in other provisions of the collective agreement, for example, art. 3.1(b)(ii) states calendar week, and, work week, which modifiers are necessary in the context of the 12-hour shifts addressed in art. 3.1(b). Similarly, art. 4.3(a)(ii), states, work week, given the subject-matter of that provision, namely, court appearances, which is defined as a standard forty (40) hour, five (5) day work week. Further, art. 4.10(g) expresses the term entire week for purposes of dealing with a third signing for vacation that results in the member being off Monday to Friday. In like manner, art. 4.12(d)(ii) speaks to full weeks of annual leave in the context of a second signing for vacation purposes for members on 10-hour shifts. That is to say, the parties have a practice of refining, narrowing and modifying the word week in order to achieve the precise purpose they intend. Such modification, however, is absent in art. 4.15(a), thus, per week means every week, as is its ordinary meaning. That the application of the ordinary meaning of per week as meaning every week is correct, is bolstered or supported by the parties use of various expressions in Article 4 provisions which precede art. 4.15(a), in addressing days of work (art. 4.10(b)(i), art. 4.11(e)(i)), and a normal work week (art. 4.3(a)(i)). In short, the plain meaning of per week, as being every week fits or aligns with the operational requirements concerning the work which members perform, be it expressed in hours, days, or weeks. Accordingly, the mandatory requirements governing the taking of annual vacation leave in art. 4.15(a) cannot be overridden by the decision of the Chief of Police to cancel such leave from July 5 th to 25 th, 2015, inclusive. The Association acknowledged that art. 4.3(b) states that the vacation of a member is to be taken as scheduled from time to time by the Chief of

13 13 the Police Service. However, art. 4.15(a) is a specific provision that prevails over art. 4.3(b), which is a general provision regarding the general powers of the Chief of Police. In that regard, a general grant of authority, once superceded by a grant of a specific right, cannot override the specific grant of right. Thus, since art. 4.3(b) is a general power of the Chief of Police to schedule vacations from time to time, that authority has been circumscribed and limited by the specific vacation scheduling provisions of art. 4.15(a), which provide for a substantive right for annual vacation leave for members. Significantly, the substantive rights in that article do not totally displace the authority of the Chief of Police, in that annual vacation leave not covered in art. 4.15(a) remains under the Chief of Police s ability to schedule annual vacation leave. The Association submitted that its interpretation of the disputed language is correct where it argues the Chief of Police does not have the authority to override the mandatory, substantive rights of members in art. 4.15(a) when that article is read in light of other provisions in the collective agreement that speak to the authority of the Chief of Police. In articles 3.1(a), 3.1(b), 3.1(c)(ii), (iii), (v), 3.1(d), 3.2, 3.3, 3.12, 6.2, 7.3(b), 8.3, 16.3, and, 31.2, the parties are agreed the Chief of Police has the authority to override the members substantive rights on the basis that they are subject to the exigencies of the Service e.g., art. 3.1(a), or, at the discretion of the Chief of Police, e.g., art. 3.1(c)(ii), or, both, art. 8.3, or, as a result of exigencies of the Service, e.g., art Moreover in Article 4 Annual Vacation Leave, articles 4.3(c) and 4.5 speak to the exigencies of the Service, and art. 4.6(a) speaks to both, the discretion of the Chief of Police and the exigencies of the Service. Clearly, it was said, the parties are familiar with the above phrases and when they intend to use them, they do. Moreover, given the frequency of their use in the above various provisions of the collective agreement, when they are not used, the parties must be taken to have intended not to use them. In that regard, those phrases are notably and significantly absent from art. 4.15(a). To read into those provisions that the Chief has an ability to exercise his discretion concerning those annual leave requirements,

14 14 or, that he can take into account the exigencies of the Service would violate the general principle of arbitral determination, that an arbitrator cannot read into a collective agreement language that is not there. If the parties had intended that the Chief of Police sets the vacation schedule and, depending on the number of weeks not included in that exercise of discretion, only those weeks then left are subject to an exercise of rights, they would have used explicit language to establish that process, which they have not. Art. 4.3(b) has no express specifics regarding scheduling and the articles that follow it are more specific on the matter of the scheduling process. The parties must be taken to have agreed to the wording of collective agreement provisions in light of and in the context of Police Services Act obligations on the Board to deliver police services to the community. Articles 4.3(b) and 4.15(a) are not in conflict and do, properly, read together on the Association interpretation. The Association interpretation does not render meaningless any of the language in art. 4.3(b). This case is not about boots on the street, rather, it concerns members right to take vacation. In support of its position on the merits of the grievance, the Association submitted Re Toronto Police Assn. v. Toronto (City) Police Services Board, [2014] O.L.A.A. No. 183 (Fishbein); Re Canroof Corp. and Teamsters, Local 230 (Group Grievance), [2013] CarswellOnt 7300, 114 C.L.A.S. 288, 231 L.A.C. (4 th ) 418 (Surdykowski); Re The Leamington Police Services Board and The Leamington Police Association (November 16, 2008) unreported version (Johnston); Re DHL Express (Canada) Ltd. v. CAW-Canada, Locals 4215, 144 & 4278, [2004] CarswellNat 2975, C.L.A.D. No. 613, 124 L.A.C. (4 th ) 271 (Hamilton); Re Massey-Harris Co. v. U.A.W., Local 458, [1953] CarswellOnt 527, 4 L.A.C (Gale, J.); Re British Columbia Telephone Co. and Telecommunications Workers Union, [1995] C.L.A.D. No. 562 (McConchie); Re Telus Communications v. Telecommunications Workers Union, [2008] C.L.A.D. No. 166 (Taylor); Re Hamilton-Wentworth (Regional Municipality) Police Services Board v. Hamilton-

15 15 Wentworth Police Assn. (Annual Leave), [2002] O.L.A.A. No. 44, 105 L.A.C. (4 th ) 139 (Snow); Re Ottawa Police Services Board v. Ottawa Police Assn. (Barrette), [2006] O.L.A.A. No. 592, 86 C.L.A.S. 236 (Marcotte); Re Newmont Canada Ltd. v. United Steelworkers of America, Local 9364 (Duval), [2005] O.L.A.A. No. 740, 84 C.L.A.S. 89 (Marcotte); Re Bancroft I.G.A. and U.F.C.W., Local 175, [1996] O.L.A.A. No. 708, 44 C.L.A.S. 160 (Jackson); Re The Regional Municipality of Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Association (October 5, 2001) unreported version (Snow); Re Air Canada and Canadian Air Line Employees Association, [1973] O.L.A.A. No. 11, 2 L.A.C. (2d) 115 (Weatherill); Re Bowater Newfoundland Ltd. v. Newfoundland and Labrador Hydro (Nfld. C.A.), [1978] N.J. No. 14, 15 Nfld. & P.E.I.R. 301 (C.A.), and, Black s Law Dictionary (Thomson Reuters), Merriam-Webster s Collegiate Dictionary, 10 th ed. (Markham, Ont.: Thomas Allen & Son Ltd), and, The Oxford Paperback Dictionary, 4 th ed. (Oxford, Eng.: Oxford University Press), definitions of allow, minimum, and, per. The Board submitted that interpretation of collective agreement language entails consideration of its purpose, the parties intentions, and the need for harmony in the language used by them. Further, these considerations involve a unique context, that under s. 31 of the Police Services Act the Board is statutorily obligated to provide adequate and effective police services within its jurisdiction. This context manifests by way of their collective agreement wherein the parties are constantly striving to balance the right of the Chief of Police to manage an effective police service with the members ability to exercise their substantive rights under the collective agreement in appropriate circumstances. Thus, the agreement must be read contextually in order to give purpose to its provisions, and to its representation of a balance between the parties roles in delivering public safety, the latter recognized under art This unique context guides interpreting the collective agreement, in particular

16 16 articles 4.3(b) and 4.15(a) which, in turn, are to be read in the context of the section in which they are contained and within the agreement as a whole. The Board submitted that art. 1.4(a) clearly and unambiguously confirms the Association recognizes that the Board has the right to manage, in a broad sense, the police service. Against that acknowledgment, Article 4 sets out members entitlement to annual vacation leave but that article - nor any other article in the collective agreement - does not govern the scheduling of vacations and there is no express entitlement to assign vacations in any of the 52 weeks in a calendar year; art. 4.3(a)(i) only addresses the normal vacation signing period. Rather, art. 4.3(b) clearly states that annual vacation leave is to be taken as scheduled from time to time by the Chief of the Service. This language is a clear and specific grant of a right, or discretion, to the Chief of Police to schedule the vacation period of any of the Service s members. This language is a specific and intentional expression of a further management right over and above the provisions of art. 1.4, and is imbedded directly in the Article 4 vacation provisions. The intent and purpose of art. 4.3(b) is to allow the Chief of Police to have some measure of control before, and not after, annual vacation leave is scheduled under the scheduling provisions of that article. From the express language of art. 4.3(b), it is clear that the Board and the Association turned their minds to the matter of scheduling vacations and in so doing, agreed the Chief of Police has a specific right to schedule the vacation period of any member and exercises that right at his discretion. The above words in art. 4.3(b) clearly contemplate that it may be necessary, in certain circumstances, for the Chief of Police to deviate from the normal vacation signing period in order to respond to an operational need, staffing shortages, or, other extenuating circumstances which may present themselves from time to time. Further, under art. 4.3(b) an exercise of discretion by the Chief of Police is not absolute in that it is agreed the Association has the ability

17 17 to grieve a decision where the principle of seniority is not adhered to or that the scheduling is not acceptable. This residual Association right is a perfect balance of the parties obligations and rights under the collective agreement. The Board submitted that the Association s interpretation of art. 4.15(a), which prevents the Chief of Police from blacking out weeks in a calendar year for vacation purposes is untenable and which article lacks clear and express language for that result to occur. The Association s interpretation is not consistent with the parties intentions nor with the purpose of that article. The Board submitted that other provisions in Article 4, in particular articles 4.10(b)(ii) and 4.11(e)(ii) use the expression allowed off in regard to vacation leave, while articles 4.12(f) and 4.13(f) use the words, eligible for leave on each day. The words entitled to take time off are used in articles 4.10(b)(i), 4.11(e)(i) and 4.12(e), while 4.13(j) states their entitlement. It is to be noted that the members entitlement or eligibility for annual vacation leave in any particular week is stated in articles that come after art. 4.3(b), that is, after the Chief of Police has exercised his or her discretion to schedule any member s vacation leave. In this context, art. 4.15(a) simply provides a uniform device to show what number of members are eligible to be off on vacation proportional to the number of members in a unit or squad. The language of that article does not go so far as the Association contends; to be eligible or entitled to vacation leave does not establish a right to take that leave in any given week. If that is what the parties intended, clear language expressing that right would be required. The language in the article, however, cannot be read as a guarantee that all 52 weeks in a year are available for vacation purposes. The Board submitted that in relying excessively on the literal meaning of the words of art. 4.15(a), the Association attempts to transform, by way of dictionary definitions, a process-driven article into an immutable right or guarantee. Where literal meanings of words are not appropriate in the context

18 18 of their usage, their use as corroborative aides must be rejected. The words, minimum, shall, and allowed in art. 4.15(a) do not create a guarantee to a specific time for a member to be off on vacation, which interpretation flies in the face of the parties intentions as expressed in art. 4.15(a). As to the Association s interpretation of shall as being some sort of mandatory meaning, that interpretation does not take into account its placement in the article. In that respect, shall does not modify allowed off, rather, it modifies be determined. That is, the word shall directs the reader to use the Chart for its intended purpose, which is to specify the number of members who, at a minimum, can be off on vacation leave. The Board submitted that the Association s interpretation of art. 4.15(a) renders the phrase in art. 4.3(b), as scheduled from time to time by the Chief, meaningless, but it is properly presumed that all words have meaning. The Association s interpretation does not lead to a harmonious reading of articles 4.15(a) and 4.3(b). The Association s interpretation results in art. 4.15(a) as a guarantee that all 52 weeks in a year are available for vacation and the Chief of Police, under art. 4.3(b), then schedules vacations above and around that guarantee. This interpretation, however, has it backwards. If art. 4.3(b) did not exist, its members would be no better off because the entitlement to assign all 52 weeks would remain as a residual right that falls under the Board s management rights. But art. 4.3(b) does exist and it must have meaning. Conversely, if art. 4.15(a) did not exist, under art. 4.3(b) the Chief of Police would be empowered with the specific right to schedule members vacations from time to time and could do so without regard to the sorts of ratios that are specified in art. 4.15(a), but which ratios must be adhered to, after, the Chief of Police schedules members vacation time. If that is not the case, then articles 4.3(b) and 4.15(a) are in conflict, which is not permissible under the canons of construction for interpreting collective agreements. The Association, however, contends they are not by characterizing art. 4.3(b) as a general provision and art. 4.15(a) as a specific provision. They are, however, in conflict on its own

19 19 interpretation of those two articles. If they are found to be in conflict, then both ought to be viewed as specific provisions, in which case they cannot be reconciled by using the principle that a specific provision overrides a general provision. The Board submitted that the Association s interpretation leads to absurd results. The Association referred to a number of clauses that speak to exigencies and which clauses, generally, deal with members entitlements in various circumstances, for example statutory holidays, court attendance, bereavement leave, and, hours of work. If the Association s interpretation of the disputed language is correct, it would mean the Chief of Police could call back members from the various sorts of leave dealt with in those provisions, but could not call back a member if he or she is on vacation; that does not make sense. Further, if a member can take vacation leave whenever he or she wants regardless of operational needs, the Chief of Police would be powerless or stringently limited from responding to operational needs. It cannot be the intent of the parties that in the face of an operational exigency, the Chief of Police could only resort to calling back members on, for example, bereavement leave or on a statutory holiday and but hope they will respond to the call back from vacation leave. Such interpretation does not accord with the proper meaning of art. 4.3(b). Moreover, the Association s interpretation ignores s. 31 of the Police Services Act and prevents the Chief of Police from providing an effective police service. In support of its position on the merits of the grievance, the Board submitted Re The Regional Municipality of Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Association, supra; Re Toronto Police Services Board and The Toronto Police Association (Caribana Scheduling) (May 17, 2006) unreported version (Kaplan); Re The Metropolitan Board of Commissioners Of Police and The Metropolitan Toronto Police Association (October 11, 1985) unreported version (Weatherill); Re The Niagara Region Police Association and

20 20 The Niagara Regional Police Services Board (July 18, 1996) unreported version (Mercer); Re The Niagara Regional Board Of Commissioners Of Police and The Niagara Region Police Association (February 26, 1988) unreported version (Dempster); Re Canadian Union of Postal Workers v. Canada Post Corp. (Mah), [1999] C.L.A.D. No. 547 (Freedman); Re North Central Plywoods v. Pulp and Paper Workers of Canada, Local 25 (Gullacher), [2000] B.C.C.A.A.A. No. 85 (Greyell); Re Canada Post Corp. and CUPW, [2014] 117 C.L.A.S. 333, 2014 CLB 2004 (Peltz); Re Brampton (City) and C.U.P.E., Local 831 (Blacking Out of Vacation Periods), [2012] 110 C.L.A.S. 111, 2012 CLB 4199, 216 L.A.C. (4 th ) 403 (Silverman); Re Sobey s West and U.F.C.W. Can., Local 1400, [2010] 104 C.L.A.S. 208, 2010 CLB 33497, 202 L.A.C. (4 th ) 158 (Pelton); Re St. James- Assininboia School Division No. 2 and The Canadian Union of Public Employees, Local No. 744, [1999] M.G.A.D. No. 12, 78 L.A.C. (4 th ) 336 (Graham); Re Weyerhaeuser Chapleau v. Industrial Wood and Allied Workers of Canada, Local 2995 (Wage Rate), [2001] O.L.A.A. No. 476, 98 L.A.C. (4 th ) 150 (Tacon); Re University College of the Cariboo v. Canadian Union of Public Employees, Local 900, [2002] B.C.C.A.A.A. No. 126, 108 L.A.C. (4 th ) 218 (Gordon); Re Winnipeg (City) and Canadian Union of Public Employees, Local 500, [1997] M.G.A.D. No. 67, 67 L.A.C. (4 th ) 228 (Teskey); Re Selkirk College v. B.C. Government and Service Employees Union (Medland), [2002] B.C.C.A.A.A. No. 150, 106 L.A.C. (4 th ) 289 (Chertkow); Re Cargill Ltd. v. United Food and Commercial Workers International Union, Local No. 1118, [2005] A.G.A.A. No. 74, 142 L.A.C. (4 th ) 361 (Jones), and, Brown and Beatty, Canadian Labour Arbitration, 4 th ed. (Aurora, Ont.: Canada Lawbook, Inc.) paras. 5:3110, 5:3121, 5:3122, 5:3124, 5:3126. In reply, the Association submitted there is no evidence before me as to the parties understandings of labour relations and why they agreed to the language of the collective agreement at hand, or, in regard to their labour relations practices. Rather, it is the specific language of this collective agreement which must be interpreted in light of general labour-relations practices and

21 21 assumptions. The Association does not concede that the right extended to the Chief of Police under art. 4.3(b) is a greater right than the rights that exist under the management rights provisions. There is no reference to operational needs in art. 4.3(b), nor do the parties define time to time. The provisions that follow art. 4.3(b) limit the Chief of Police s discretion in scheduling members vacations. The syntax of art. 4.15(a) is not determinative of shall, which is clearly a mandatory term and mandates the number of eligible members to be off on vacation per week. The use of dictionary definitions does not equate with an overly-literal interpretation, rather, they serve but as a guide to understanding the plain meaning of the words used by the parties. The issue to be determined in this award is whether or not the Chief of Police improperly removed, or blacked out, July 5 to 25, 2015 inclusive, from the bargaining unit members annual vacation signings. I find the merits of the grievance, on the evidence and submissions before me, require the proper or correct interpretation of article 4.3(b) and art. 4.15(a) of the collective agreement. The arbitral approaches to the task of interpreting collective agreement language in e.g., Re Toronto Police Assn., supra, Re Canroof, supra, Re Leamington Police, supra, Re DHL Express, supra, Re Massey-Harris, supra, Re Bewater, supra, Re Weyerhaeuser, supra, Re University College of the Cariboo, supra, and, Re Selkirk College, supra, are aptly summarized, for purposes at hand, in Canadian Labour Arbitration, supra, at para. 4:2100: It has often been stated that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it. As one arbitrator, quoting from Halsbury s Laws of England, stated in an early award: The object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intentions of the parties as is possible, and as the law will permit.

22 22 And further: But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation, equivalent to the intention. Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions. [Footnotes omitted.] Further, the authors identify certain relevant canons of construction, or guides to interpretation, that are reflected in the above awards: In searching for the parties intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense, unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense. (para. 4:2110, footnotes omitted). Where there is no ambiguity or lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive (para. 4:2110, footnotes omitted). In construing a collective agreement, it should be presumed that all of the words used were intended to have some meaning, and, that they are not intended to be in conflict (para. 4:2120, footnotes omitted). If the only permissible construction leads to conflict, its resolution may be made by applying the following presumptions: o special or specific provisions will prevail over general provisions; o where the same word is used twice it is presumed to have the same meaning; o where two different words are used, they are intended to have different meanings; (para. 4:2120, footnotes omitted). General purpose clauses may be used as a guide to interpretation of the collective agreement although it has no independent validity

23 23 as a source of rights or obligations, nor can it override any provisions of the agreement (para. 4:2130, footnotes omitted). The context in which words are located is critical to their meaning. Thus, it is said that the words under consideration should be read in the context of the sentence, section and agreement as a whole (para. 4:2150, footnotes omitted.) Although arbitral awards frequently make reference to dictionaries to verify the meaning to be given to words, such definitions are generally used only as corroborative aids, and not as absolute authority (para. 4:2210, footnotes omitted.) In construing collective agreements, arbitrators look to the purpose of the particular provision in the collective agreement as an aid to determining the meaning intended by the parties (para. 4:2300, footnotes omitted). In applying the above arbitral guidelines for purposes at hand, art. 4.3 states, that: The vacation period of any member (b) is to be taken on the basis of the member s seniority [and] as scheduled from time to time by the Chief of the Hamilton Police Service Under this provision, the parties are agreed the Chief of Police has the authority to schedule any member s vacation and that he may use that discretion from time to time. Thus, the decision by the Chief of Police to black-out July 5 to 25, 2015 for members vacation signings is within his discretion. The scheduling of vacations is also addressed in art. 4.15(a). Article 4.15(a) states, relevant for our purposes, the minimum number of members allowed off on annual leave at one time shall be determined by the chart outlined below. The use of the word minimum indicates the numbers specified in the chart. The words in issue are unambiguous as, corroborated by these ordinary definitions, nor is syntax in the above language abstruse. Thus, art. 4.15(a) clearly and unambiguously provides for the specified minima of members at any one time to be mandatorily permitted annual leave every week of the vacation year. No other reading of this language is plausible.

24 24 The above examination reveals that both articles deal with the matter of scheduling of members vacations, art. 4.3(b) by way of an exercise of discretion by the Chief of Police, and, art. 4.15(a) by way of a mandatory requirement to schedule minima members on vacation per week. No controversy would arise between the parties had the decision by the Chief of Police, articulated in the August 7, 2014 letter to the Association, indicated, for example, no members will be scheduled for vacations from July 5 to 25, 2015 inclusive, over or above the minima numbers per week under art. 4.15(a). However, the decision by the Chief of Police, that no members will be so scheduled for that period of time, appears, at first blush, to be in conflict with the provisions of art. 4.15(a). Since it is presumed that the words chosen by the parties are not in conflict, it is appropriate to examine the collective agreement as a whole. Under art. 1.4(a), the Association and its members recognize and acknowledge that it is the exclusive function of the the Board, (i) to direct the working force which includes the right to schedule working hours. The general right to schedule members working hours includes the right not to schedule working hours for vacation purposes. Since the right to schedule vacations rests with the Board under art. 1.4(a), the express provision in art. 4.3(b) for the Chief of Police to exercise discretion in scheduling any member s vacation would seem an un-necessary repetition of that management right. (For purposes of this award, no distinction is made between the Board and the Chief of Police concerning the exercise of management rights.) However, it is presumed that all words agreed to by the parties in their collective agreement having meaning. In turning to the section of the collective agreement that deals with vacations, the ability of the Chief of Police to schedule a member s vacation period is contained in Article 4 Annual Vacation With Pay. Article 4.1, broadly, speaks

25 25 to matters of pay related to vacations and art. 4.2 addresses, again broadly, how vacation benefits are calculated. Article 4.3 then concerns the matter of scheduling members vacations, followed by articles 4.4 through 4.14 which deal, broadly, with vacation pay, various circumstances for calculating vacation time and pay, and the processes by which members select, on the basis of seniority, the time they prefer to be on vacation. Articles 4.15 and 4.16 then deal with eligibility for purposes of calculating the ratios specified in the chart in art. 14.5(a), which article provides for the mandatory minima numbers of members off per week on vacation. Articles 4.3(b) immediately follows art. 4.3(a)(ii) which article contains the only other reference to scheduling vacations viz., 4.3 (a)(ii) in scheduling a vacation period for purposes of court appearance only, the vacation period of any member is to be based on a standard forty (40) hour, five (5) day work week While art. 4.3(a)(ii) is confined to the specific circumstance of vacation scheduling concerning court appearances, art. 4.3(b) places no restriction of the discretion of the Chief of Police to schedule any member s vacation. That is, the parties turned their minds to vacation scheduling and where they first reference scheduling in that article, immediately thereafter they are agreed the Chief of Police can exercise discretion to schedule any member s vacation and imbedded that discretion within the article that deals with members vacation. Moreover, it must be taken that when the parties agreed to the language of art. 4.15(a), they did so in awareness of the language of art. 4.3(b). In my view, and I so find, any conflict between art. 4.3(b) and 4.15(a) is resolved by the use of the phrase from time to time in the former. The provisions in a collective agreement provide for the parties rights and obligations. In crafting language that expresses those rights and obligations,

26 26 the parties reasonably expect that matters such as management rights, union recognition, seniority, wage benefits, hours of work, vacations and leaves will, in the normal course, operate in a consistent manner during the term of the collective agreement. In the instant case, the parties must be taken to have expressed rights and obligations in awareness that under s. 31 of the Police Services Act, the Board is responsible for the provision of adequate and effective police services, which services require that members be present, on the job, every hour of every day of the year. This requirement may affect members working conditions and in recognition of that reality, where hours of work and matters of leave are addressed, there is frequent reference to members rights being subject to the exigencies of the Service for example, in regard to Hours of Work (art. 3.1(a), art. 3.1(d), 3.2, 3.12), Acting Ranks (art. 6.2), Off-Duty Court Attendance (art. 7.3), Bereavement Leave (art. 16.3), Family Responsibilities Leave (art. 31.2), or, at the discretion of the chief of Police, as stated in art. 3(c)(ii) (Hours of Work), art. 4.6(a) (Hours of Work) and art. 8.3 (Association Business). Moreover, in the majority of those provisions, the word shall or will (e.g. art. 3.3) is used to express the members substantive right, i.e., the parties use mandatory language to govern that right, e.g., art. 3.1(c)(v) subject to the exigencies of the Service, there shall be one (1) seventy-five minute lunch period granted (Emphasis added.) (The exceptions are: Art. 4.5 states, is entitled ; art. 7.3, Where a member elects to accept (b) such time off is to be allowed at the discretion of the member; art. 16.3, The Chief of Police may grant ; art. 31.2, members may request the use of annual leave at the member s discretion. ) All the provisions generally deal with a member s absence from work, which absences are weighed against the exigencies of the police service or governed by an exercise of discretion by the Chief of Police. In this context, it does no offence to the parties intentions that while they have agreed in art. 4.15(a) to specified minima of officers off work on vacation per week in mandatory language, that provision, similar to the above referred-to provisions, is tempered by the ability of the Chief of Police to schedule fashions where the needs of the service require members not to be on