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Home My WebLink About1987-2267.Pattullo.89-03-22IN TEE BATTER OF AN ARBITRATION Under TEE CRGWN ENPLOYRBS COLLECTIVE BARGAINING ACT Between: Before: (: APPEARING FOR TEE GRIEVOR: APPEARING FOR TEE EBPLOYER: EEARING: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Pattullo) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer J.W. Samuel6 - Vice-Chairperson L. Robbins - Nember E. Orsini - Member R. Pattullo Spoke for himself on the merits B.A. Hanson Counsel - Cavalluzzo, Hayes & Lennon Barristers & Solicitor6 T. Churchmuch Counsel The Institute Barristers & Sdlicitors March-Z, 1989 2 The grievor claims that the seniority date of certain other classified staff is wrongly calculated, and therefore he is prejudiced in cases of job promotion, lay-off, and other situations. His concern is with classified employees who, immediately before they became classified, worked for an unbroken .period full-time as “Go-Temp” employees on temporary work assignments. Pursuant to Article 25.1(b) of the collective agreement, these employees are given seniority credit for their time as Go-Temp, though they were not members of the bargaining unit when they were Go-Temp. The grievor feels that this is unfair, because some of these employees wind up having more seniority than he has as a result of their service during a period that these employees did not pay Union dues. Article 25,1(b) says: An employee’s length of continuous service will accumulate upon completion of a probationary Period of not more than one (1) year and shall commence: . . . . . . . . . . . . . (b) from the .date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service. This is an unusual case, because the Union agrees with the Employer that there has been no mistake made in the calculation of the seniority for these other employees. In other words, the parties to the collective agreement havl, no difference of position here. ” .~ At the outset of our hearing, the Employer made two preliminary objections, Firstly, it was argued that the grievor had no standing in these circumstances to come before this Board, because there was no difference of position between the Union and the EmpIoyer. Secondly, it was argued that this is not an appropriate individual grievance, but rather involves a matter which could be a Union grievance, and the Union does not grieve. . 3 Furthermore, the Employer suggested that, if the grievor could bring this grievance, the Board must first notify other employees who may be affected by our award and give these employees the right to be present and to participate in our proceedings (and we were told that there may be some 4500 such employees in the classified service!!). The Board resisted the initial and, almost overwhelming temptation to adjourn and reconvene the hearing in Maple Leaf Gardens. With respect to these preliminary objections, the Union argued that the ~grievor can come before the Board, though on the merits the Union asides with the Employer in this case. Counsel for the Union was prepared to step aside to permit the grievor to argue his case on the merits. Insofar as~the form of the grievance is concerned, the Union argued that this is a proper individual grievance. After hearing the argument on the preliminary matters, the Board reserved its decision on these matters and went on to hear the argument on the merits. The grievor presented his own case. We are not going to come to a final conclusion concerning all of the preliminary matters, in view of the fact that, in our view, the grievor’s complaint has no merit. We will comment on the preliminary matters, but we think it best in this case to dispose of the grievance on its merits. Firstly, does the grievor have standing before this Board when there is no difference of position between the Union and the Employer? In our view, the arguments against the grievor’s right to come to the Board are as follows: 1. The collective agreement is between the Union and the Employer. It is their document. The Union acts as the bargaining agent for all the employees covered by the agreement. As the Preamble says in Article 1 (a), The purpose of this Agreement between the Employer and the Union is to establish and maintain: (a) satisfactory working conditions and terms of employment for all employees who are subject to this Agreement. Thus, it .is the Union which must speak for an aggrieved employee, and in our case the Union says that the Employer has not violated the collective agreement. 2. Article 27.1 of the collective agreement sets out the intent of the grievance procedure. It is to adjust as quickly as po;stible a?y complaints or differences be- arising from &interpretation, application, administration or alleged contravention of this Agreement (Emphasis added). Thus, a grievance is a “complaint or ‘difference between the pw, and therefore there is no grievance in this case. 3. This interpretation of the collective agreement accords with what common sense tells us must be the situation with respect to the enforcement of the collective agreement. The agreement is made by the Union on behalf of thousands of employees. The Union has in mind the best interest of all of these employees. It is the Union which makes the deal in the first place, and it is the \ Union which determines ,whether of not there is a compIaint or difference concerning the interpretation, application, administration, or alleged contravention of the agreement. The whole system would be unworkable if a single employee could overturn the implementation of the collective agreement when the two parties to the agreement are content that the agreement is being honored. And the Union is speaking on behalf of thousands of potentially affected employees. 5 On the other hand, the arguments in favor of the grievor’s right to come before this Board are as follows: 1. Articles 27.2.1 to 27.6.2 in the collective agreement, which set out the grievance and arbitration procedure, speak of the aggrieved employee controlling the course of the proceedings. These provisions read: 27.2 27.2 .l .2 273.1 27.3.2 27.3.3 27.4 27.5 27.6.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or differ- ence with his supervisor within twenty (20) days of first becomingawareof thecomplaintordifference. If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion. it may be processed within an addi- tional ten (10) days in the following manner: STAGE ONE The employee may file a grievance in writing with hissupeNisor.Thesupewisorshallgive thegrievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO If the grievance is not resolved under Stage One, theemployeemaysubmitthegrievancstothe&p uty Ministeror hisdesignee within seven(7)daysof the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time lim- its in Stage One. the grievor may submit the griev- ance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accord- ance with Stage One. The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. If the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievormayapplytothe GrievanceSettlement Board fora hearingof thegrievance within fi~eenU5)days ofthedate hereceived thedecisionorwithinfiheen (15)daysofthespecified timelimitforreceiving the decision. The employee. at his option. may be accompanied and represented by an employee representative at each stage of the grievance procedure. An employee who is a grievor or complainant and who makes application for a hearing before the Grievance Setllement Board or the Public Sewice 6 Labour RelstionoTribunalshsll beallowed leave-of- absence with no loss 01 pay and with no loss of credits. if required to be in attendance by the Board or Tribunal. 27.6.2 An employee who has a grievance and is required to attend meetings at Stage One and Two of the GriwancePmcedureshallbegiventimeoff withno lossof payandwith nolossof creditstoattendsuch meetings. In particular, Article 27.4 says that it is the grievor who makes application to this Board for a hearing. Thus, the parties to the collective agreement (the Union and the Employer) have established a procedure which enables an individual employee to prosecute his or her individual grievance. 2. This Board has recognized the right of the individual employee to carry the grievance, in spite of the Union’s refusal to represent him. In Barnfield, 67176 (Swan), the Board dealt with a case where the grievor did not want the Union to speak for him, though the Union wanted to do so. The Board decided that the Union is primarily responsible for administering the collective agreement, and therefore it is the Union which ought to be heard on the merits (at pages 2-5). However, the Board went on to consider the situation where the Union may take a position adverse to the grievor, and said (at page 5): That is not to say that there nay not also be occasions when an individual grievor may, because~of an interest adverse to that of the union, be entitled to address the Soard on his own behalf: see Re Bradley and Ottawa Professional Fire Fighters Ass'n /1967), 63 D.L.R. (2d) 376, I19671 2 O.R. 311 tC.A.):Re Xoogesdwrn &?d Greening f!t?tal Products & Screening Equipment CO. (1967), 65 D.L.R. l2dl 641, Cl9681 S.C.R. 30. 7 And this is our case. As we said earlier, we will not come to a final decision concerning the grievor’s right to come to this Board. With respect to the Employer’s objection that the subject matter of this grievance is not proper for an individual grievance, in our view, the grievor is materially affected by the way in which seniority is credited to others, and therefore this is a fit subject for an individual grievance {see Hawley, .2592/87~@issanayake), at page 5; Glenny, 368188 (Dissanayake), at page 5; and Kafchay, 354183 (Samuels), at page 4). The grievor’s, place on the seniority list is a material fact. The list exists. An employee’s place on the list can have a significant bearing on matters such as job competition, lay-off, and other rights. The grievor doesn’t have to wait until his place on the list becomes an actual barrier to him. With respect. to the Employer’s suggestion that the other 4500 potentially affected employees have a right to be present, we disagree because here the Union is representing their interest. It is only when the Union represents an interest which is adverse to these other employees that they have a right to participate. In this respect, we agree with the comments made by Mr. Beatty in Re Westroc Industries Ltd. and United Cement, Lime and Gypsum Workers, Local 366 (1973)‘ 5 LAC (2d) 61, about the rights of such employees established by the Supreme Court of Canada in Re Hoogendoorn and Greening yetal Products Screening Equipment Co. et al. (196g), 65 DLR (2d) 641, [I9681 SCR 30. Mr. Beatty said (at page 74): Secondly, this reading of the cases accords with the basic rationale behind the “Hoopxdoom ~i(,l~.ts”. That rationale is that where a trade union is required to choose between the competing rights of two employees or groups of employees, the employee or group whose interest the union is not advanc- ing is entitled, by its own representation, to protect that interest. However. in cases such as the one before us. the union is not required to make such a choice. It is not actiw 8 ngainat the interests of any employee in the unit. Further the foreman’s interests in such a proceeding do, in fact, coincide with their employer’s The latter% representations will in such a .case adequately serve to protect t,heir interests. Turning to the merits of the grievor’s complaint, in our view the language of Article 25.1(b) is crystal clear. The Go-Temp who works full- time for an unbroken period immediately before appointment to the classified service is entitled to seniority credit for this period as a Go- Temp. This provision is not giving any rights to an employee who is not a member of the bargaining unit. The employee who gets the seniority credit hi a member of the.bargaining unit. The parties to the collective agreement can provide for seniority credit for bargaining unit emnlovees in respect of any period of time, including periods of time during which - the employee was not a member of the bargaining unit. . ..” 9 By giving such credit, the Employer is not violating the collective agreement. For these reasons, the grievance is dismissed. Done at London, Ontario, this **nd day of March , 1989. L. Robbins, Member P E. Orsini, Member