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HomeMy WebLinkAboutUnion 05-03-29 "",' " '- r..., . '-I' I' I ~ (./ "'-'Ii C \::.. " ;- ø Ièf1- ,- '1 ,,', IN THE MATTER OF AN ARBITRATION UNDER SECTION 48 OF THE LABOUR RELATIONS ACT, 1995 (as amended) BETWEEN '~~, ,G> "'t ~ Ontario Public Service Employees Union ("the union">"'"" ~o '¡\, \~., AND ',ç' ~ \~,'~ '.' \ ~'. iff' " \ '-5-'. ~, \I Complex Services me. c.o.b. Cas~o Niagara '\\ /' . ("the employer" or "the CasIllo") ~,/' And in the matter of two grievances concerning the calculation of seniority for employees temporarily assigned to. the position of "shift supervisor" : OPSEU grievances # 03278093 and # 03278 131. BEFORE: R.O. MacDowell (chair) Clay Appleton (employer nominee) Ed Seymour (union nominee) APPEARANCES: t For the Union: Jim Hannigan (counsel) Joel Swartz J ody Hutton Jim Vanderburg Jim Storin Jack Profitt Robert Field For the Employer: Simon Mortimer (counsel) Richard Paris Ken Conhiser ~ A hearing in this matter was held in Niagara Falls, Ontario,' on December 16, 2004. \. r -\ <. ',.. , AWARD I - Introduction: what this case is about. This arbitration proceeding arises from two "grievances", filed by the union in June and July of 2003. The dispute concerns the calculation of "seniority" for bargaining unit employees who temporarily leave the bargaining unit to fill the position of "shift supervisor". The issue is whether the time spent as a Shift Supervisor, (i.e. perfonning work functions outside the bargaining unit), "counts" in the calculation of employee "seniority" under the collective agreement. The employer says that when bargaining unit members accept these temporary supervisory positions they continue to accumulate seniority rights, just as if they had remained in the bargaining unit all along. In the employer's submission, the acceptance of a temporary supervisor's position has no effect whatsoever on the individual's seniority rights under the collective agreement - including the accumulation of seniority. The employer says that for this particular kind of "outside assignment", there is no distinction between service in the bargaining unit and service outside the bargaining unit. In the employer's submission, both kinds of "service" "count" towards an employee's accumulated seniority under the collective agreement. Or to put the matter another way: an employee in the bargaining unit can accept a temporary supervisory 2 , , ,. v' .. position, without ptejudiceto the maintenanc.e and accumulation of seniority rights under the collective agreement. The union disagrees. The union says that employees. who leave the bargaining unit to. take up a temporary position as "Shift Supervisor", do not."lose" any seniority that they have accumulated up to that point; but neither does their seniority . continue to "accumulate" while they are outside the bargaining unit, in the supervisor's position. In the union's view, the employee is "frozen" at the seniority level that slhe had at' the point when slhe left the bargaining unit; then slhe starts to accumulate "seniority" again, when the temporary assignment ends, and slhe returns to the bargaining unit. As the union sees it, "seniority rights" under this collective agreement are a creature of the collective bargaining relationship, and are contractually linked to working in the bargaining unit. Accordingly, when an individual leaves the bargaining unit for the supervisory realm, slheceases to accumulate seniority rights. n - Some "housekeeping issues" A hearing in this matter was held, in Niagara Falls, Ontario, on December 16, 2004. The parties were agreed that this board of arbitration has been properly appointed under the tenns ofthe collective agreement, and that the board has jurisdiction . to hear and detennine the matters in dispute between them. The parties were further agreed that, if the union's claim is successful, the board can remain seized in the event 3 . , "f < ., .. that there is any difficulty in fashioning the appropriate remedy. And what. the. union initially sought, by way of remedy, was: a declaration that its proposed interpretàtion of the collective agreement was the correct one; and a direction that the employer calculate' and apply "seniority rights", in accordance with that interpretàtion. However, it is not disputed that the employer has been calculating seniority and producing "seniority lists" in accordance with its own interpretation of the collective agreement - the interpretation that the union challenges in this case. Accordingly, if the union's pr9posed interpretation is "right", then the existfug seniority lists are "wrong", and do not properly record the employees' correctseniority .,either individually, or in relation to. each other. That is why the union initially took the position that the appropriate remedy was to rectify the seniority list, so as to bring the "incorrect" seniority infonnation, into line with the actual requirements of the collective agreement. Prima facie, we agree with the union thatifthe seniority lists are wrong, the appropriate remedy for this kind of case, is to put all employees into the position that they would have been in, had the tenns of the agreement been properly applied in the first ~. . place. However, because that remedy would have a "negative" impact on some employees in the bargaining unit (i.e. those who have accepted temporary supervisory assignments and been given "seniority credit" by the employer, for the time spent in that position), there was a question about whether this group of employees had to be extended specific notice of this proceeding, and given an opportunity to participate, individually. (See: Re Hoogendoorn and Greeming Metal Products and Screening Equipment Co. 4 . , , , .. ) (1967),6SD.L.R. (2d) 641 and Re. Bradley & Ottawa Professionàl Firefighters [1967] 2 O.R. 301). There was also some question about whether the hearing could proceed in the absence of such specific notice. On the other hand, any interpretation of the seniority fonnula in a collective agreement necessarily impacts on all employees in the bargaining unit in one way or another, and it does not follow that such employees are necessarily entitled to individual notice, whenever the interpretation of seniority provisions is put in issue in an arbitration proceeding. That would amount to treating the collective agreement as if it were a bundle. of individual contracts of employment - which the Supreme Court of Canada has ruled (despite Hoogendoorn) is not the proper way to look at the collective agreement; and it would alsotum a bilateral arbitration on the meaning of the seniority clause, into a multi party exercise, that is not contemplated by either the collective agreement or the Labour Relations Act. Moreover, in the instant case, the competing interests and interpretations were already represented by the institutional parties, who appeared with legal counsel; so, as a practical matter, it was not at all clear what individual employees could actually add to the proceeding - particularly when the facts were not in dispute, when the .crux of the case involves a pure issue of interpretation, and when the competing' interpretations were already being advanced by counsel. Nor was anyone anxious to derail this proceeding, (causing additional cost and delay), to give a purely fonnalistic notice to individuals who were unlikely to appear, and whose actual interests were already being advanced by the union or by the employer. S , , ~ , , ( Nevertheless, in order to avoid any potential "notice problems" or any allegation of a "denial of natural justice", the parties agreed that if the uniòn was successful in its claim, then its proposed interpretation of the collective agreement would have prospective effect only, from and after Monday, January 3, 2005. In addition, the union seeks no reduction to anyone's accumulated seniority up to this point (i.e. it does not assert that anything should be "taken away" from anyone). Finaily, the employer undertook to advise employees of the issues in this proceeding, so that while the outstanding interpretation question was pending before this board, anyone inclined to take on a temporary supervisor assignment, would be a apprised of the potential consequences of that choice, and could make hislher decision accordingly. With these undertakings and understandings, the parties were agreed that the case could proceed, as scheduled. The provisions of the collective agreement which are primarily in issue, are as follows: ARTICLE 2 - RECOGNITION 2.01 In accordance with the provisions of the Ontario Labour Relations Act 1995, the. Ontario Public Service Employees Union is recognized as the bargaining agent for all Security Associates employed by Complex Services Inc., carrying on business as Casino Niagara in the City of Niagara Falls, save and except Security Shift Supervisors and persons above the rank of Security Shift Supervisor. 6 , , " , Shift SuDervisors 2.02 (a) With the employee's agreement, he or she may be asked to fill the role of Shift Supervisor on a temporary basis. The employee will not lose anvseniority' under this agreement while working outside the bargaining unit in this capacity. 2.02 (b) It is agreed that where an employee has agreed to act outside the bargaining unit as a Shift Supervisor the Employer will ensure that this person is identifiable as a Supervisor to employees in the bargaining unit. ARTICLE 12-SENIORITY 12.01(a) "Seniority", as referred to in this agreement, shall mean'length of continuous service in the bargaininf!: unit from the . last date of hire into current status/position within the barf!:aininf!: unit. 12.01(b) "Service", as referred to in this agreement,' shall mean . . length of employment with the Employer from the date of last . . hire. 12.01(c) Full-time and part-time employees shall accrue seniority on . the basis' of duration of employment in. his/her current status/position since last date of hire into the status/position; 12.01(d) Seniority under this collective agreement has no application elsewhere in the Casino. 12.02 The Employer will maintain two seniority lists, one for non-probationary part-time employees and one for non- probationary full-time employees. The lists shall be in seniority sequence and will indicate name, service date and seniority accrued. The lists shall be updated and posted annually, and a copy of the lists shall be supplied to the Union at the time of posting. 7 , , ~ , , . 12.03 Where an employee moves from part-time to full.;time status, or vice-versa, shelhe shall be placed at the bottom of the appropriate seniority list, but shall retain the accrued' service attained atthe date ofthe move. 12.05(a) Seniority dates will be maintained and seniority will continue to accrue during any pregnancy or parental leave, wsm or disability leave and other approved leaves of absence under this Agreement. 12.05(b) .Should.an employee accept a postingfor à temporary . period outside of the bargainingùnit but still within the employ of . the Casino, his or her accrued seniority in the bargdinin¡; unit . will be frozen for that period, and will resume. accrual upon retUrn to the bargaining unit. . 12.06 Loss of Seniority and Termination of Employment Seniority will be lost and employment terminated where an employee: . (a) voluntarily resigns; or (b) retires or is retired under a mandatory retirement policy; or (c) is dismissed and is not reinstated; or (d) fails. to report to work at the expiration of a . leave of absence except where a reason satisfactory to the Employer is provided in advance of the expiration of the leave, or works elsewhere without authorization while on a leave' of . . absence; or (e) is recalled and refuses the recall, foregoes recall rights or is recalled and does not retumto work within seven (7) days of the notice of recall; or (t) is. absent from work for more than three (3) consecutive working days except where a reason satisfactory to the Employer is provided for the absence; or (g) is laid off for a period in excess of twelve .(12) months [emphasis added] These are the primary provisions to which the parties referred in argument. However, for the purpose of comparison and completeness, we have also reproduced certain other provisions of the collective agreement and the Labour Relations Act, in an 8 , , ~ ..' , Appendix to this Award~ We will return to these various provisions later. First, it might be useful to briefly sketch in some additional background. ßI ~ Some additional background The union is the bargaining agent for several hundred "security employees" who work at the company's casino, in Niagara Falls, Ontario. The security staffare a small minority of the employer'soverall work force. The rest of the employees are "non-union". The union and the employer are bound by a 5-year collective agreement, . ' that runs from August 2001 until March 2006. . It is the parties' first collective agreement. The issue in this case involves the interrelationship (if any) between . Articles 2 and 12 of the collective agreement (reproduced above). Both parties took the position that the collective agreement language is "clear", and that such language supports their own proposed interpretation of Article 2 and Article 12. Both parties. claimed that. it was unnecessary to. resort to "extrinsic evidence" as an aid to interpretation. The clauses spoke for themselves~ However, in thealtemative, both parties asserted that, if the agreement is either patently or latently "ambiguous" in some way, then the bargaining history supports 9 , , '" , , ( their own preferred view of things. That history was put before us on agreement, and can . be summarized, briefly, as follows. * In August 2001, the union was certified to represent the bargaining unit of employees that is now described at Article 2.01 of the collective agreement (see above). There followed a protracted process of negotiations, with a view to concluding a first collective agreement. That first agreement was eventually signed on March 7,2003. Among the issues discussed at the bargaining table, was the role and the status of "temporary Shift Supervisors" - who, as the title indicates, take over when the regular Shift Supervisors are unavailable. This role is perfonned, as needed, by so-called "duals" (the parties' terminology): bargaining unit employees who have obtained an additional and higher-level licensing status, that entitles them to act as a supervisor. In this highly regulated work environment, the extra license is necessary to perform such supervisory functions - even temporarily. On May 22, 2002, the parties "signed off' on the recognition clause, Article 2.01. The fonn of that clause reflects the certificate issued by the Ontario Labour Relations Board, and clearly excludes "Security Shift Supervisors" from the bargaining unit. However, the status of temporary "Shift Supervisors" remained a matter of controversy between the parties - including whether these "duals", were also excluded from the bargaining unit altogether, because of their occasional exercise of supervisory functions. 10 , , \ . , " ' There Was a lot of discussion at the bargaining table about thisissue;but it appears that there was no reference to the Labour Relations Board for clarification (see sections 1(3) and 114 of the Labour Relations Act, reproduced in the Appendix to this Award). The trade union's view wasthat secUrity officers had to be either "fish" or "fowl" (i.e. either in the bargaining unit or out of it), that they could not have dual allegiances, and that they should not be put in a position where they might have to discipline their fellow bargaining unit members. The union therefore urged the employer treat them as "lead hands", so that they could occasionally exercise' supervisory functions, but would still remain - unequivocally, and at all times - as members of the bargaining unit, with all of the rights and protections of the collective agreement. The union also proposed that such "lead hands" should have a different wage rate; to reflect their additional responsibilities. The union watlted to negotiate that premium rate. The employer did not agree with, or ultimately accept, these proposals. Over the course of the negotiations, the employer consistently said that it needed "backup" for its complement of pennanent supervisors, and that it wéUlted to use qualified bargaining unit employees (the "duals") for that purpose, The company wanted to continue to have such individuals "act up" into the position of temporary Shift Supervisor; and it would not agree to limit their ability to impose discipline, should that become necessary. Nor would the company agree that these individuals should be "lead 11 , . f . . ' hands" in the bargaining unit There was a dispute about the status of the "duals"; but . there was no doubt in the employer's mind, that when these individuals were acting in the role of Shift Supervisor, exercising authority over their fellow workers, they were - and had to be- outside the bargaining unit The employer also consistently said that persons in this acting supervisory capacity should be able to accept such positions without losing any seniority - by which the employer meant the right to continue to accumulate seniority while temporarily serving in this capacity. The employer pointed out that because a number of employees' had been hired on the same day, any loss of seniority would effectively deny the employer access to these employees, because no one was likely to accept a temporary assignment if it affected hislher relative position on the seniority list. Just as consistently, the union replied that seniority was a bargaining unit concept, and that the employer should therefore use a "lead hand system", so that persons perfonning these occasional supervisory duties would remain, unequivocally, in the bargaining unit. On January 12,2003, the parties agreed to Article 12: the seniority language reproduced above. At that point, there were a number of issues outstanding, including the use öfacting supervisors, the status of duals, the "lead hand" alternative, and the advisability of clarifying the language ofthe recognition clause. On January 28, 2003, the parties returned to these issues once again. The focus of the discussion on that day was whether temporary Supervisors could or should 12 , '. , , , . impose discipline; and the employer continued to take the position that individuals in the position of temporary supervisor should not lose seniority. There was no agreement on either of these questions; A few days later, on February 3, 2003, the employer proposed, and the union ultimately agreed to, Article 2.02 ofthe agreement, which reads as follows: . . 2~02 (a) With the employee's agreement, he or she may be asked to fill the role of Shift Supervisor on a temporary basis. The employee will not lose anv seniority under this agreement while working outside the bargaining unit in this capacity. 2.02 (b) It is agreed that where an employee has agreed to act outside the bargaining unit as a Shift Supervisor the Employer will ensure that this person is. identifiable as a Supervisor to. employees in the bargaining unit. [emphasis added] Theparties also agreed to the following "Letter of Understanding": At negotiations the issue of temporary Shift Supervisors imposing discipline 011 bargaining unit members was discussed. The Employer indicated that, while it could not limit its Supervisory role, it recognized the issues that could potentially arise if these individuals impose discipline. These provisions were concluded during a process of mediation, involving a third-party facilitator. There is no evidence of any discussion between the parties on the meaning, or the effect, of Article 2.02(a).' All that welmow is that the employer proposed that provision, worded as above, and the union accepted that wording. The union was of the view (later maintained in argument before us) that the addition of Article 2.02(a) did not change anything, but merely confinned the effect 13 , , .' " , .. of ArticleI2.05(b); namely: that duals who took on the assignment of temporary Supervisor would retain (i.e. would not "lose") their existing seniority, but, by the same token, their seniority would not continue to accrue while they were in that temporary position, outside the bargaining unit. The employer was of the view (also maintained in argument before us) that the addition of Article 2.02(a), did effect a change: it meant that "duals" could accept these. temporary assignments withóut prejudice to their seniority status under' the collective agreement - which is to say, that they would not "lose" their accrued seniority, and they would also continue to . accumulate seniority, while working outside the bargaining unit in this particular temporary capacity. The employer wanted to cover off the concern that it had expressed to the union a few days before: that if there was a negative impact on seniority, no one would want to accept the role of temporary supervisor. That is why the employer proposed Artiele 2.02(a). IV - The position of the parties in a little more detail hi the union's submission, the collective agreement clearly distinguishes between "seniority" and "service" [Article 12.01(a) vs. Article 12.01(b)], and makes "seniority" dependent exclusively upon service in the bargaining unit. By definition, an employee working outside the bargaining unit, cannot accumulate seniority. Moreover, in the union's submission, the agreement specifically deals with what happens when an employee takes a temporary position outside the bargaining unit. Under Article 12.05 (b), 14 , , , ~ such employee's seniority is frozen until slhe returns to the bargaining unit: slhe retains, what slhe has already accumulated [does not "lose"], but slhe does not accrue seniority. The union argues that Article 12 provides acompletè code for the treatment of seniority rights, and specifically covers' the very issue before us: how to . . calculate the seniority for someone who takes up a temporary position outside the bargaining unit. In counsel's submission, it is the senioritytulesin Article 12 that prevail, and that provide the answer to the question put before us. Article 12.-the seniority clause - tells us how seniority is to be interpreted and applied in particular circumstances, . including those raised by this case. The union notes that Article 2.02(a), appears in the "Recognition Clause", and, in the union's submission, it should be taken no further than what the unioilsays is its plain, and literal, and limited meaning: namely, by accepting a temporary position outside the bargaining unit, the employee does not "lose" any seniority that s/he has previously accumulated. However in the union's submission, Article 2.02(a) says nothing about the "accrual" of seniority, even though that concept and terminology are recognized elsewhere in the agreement - particularly in Article 12.05(b) itself, which, the union says, covers the present caSe. (See also Article 12.03, and 12.02). So in the union's submission, the phrase "will not lose any seniority" means only that the employee will not lose what slhe has accumulated at the time of the temporary assignment: hislher 15 , , " , , seniority is frozen as at that date. It does not mean that slhecontinues to accrue seniority rights ~ which, the union says, would be inconsistent with Article 12.01. In the union's submission, Article 2.02 (a) is not an exception to Article12.05(b), but rather should be read inhannonv with it; and, to the extent of any inconsistency, the specifically negotiated seniority rules "trump" any potentially . . inconsistent interpretation of Article 2.02. Counsel acknowledges the line of àrbitral authority which supports the accrual of seniority for work done outside the bargaining unit; but he maintains that Article 12 specifically repudiates that notion. Counsel submits that in the face of that clear language, the Company cannot maintain that employees continue to accrue important seniority rights, when they are working outside of the ambit of the collective agreement, because that construction is inconsistent with the way in which seniority under this agreement is defined. . As the union sees it, employees have a choice. They can accept the supervisory role, outside the bargaining unit, and receive whatever extra salary or benefits the employer is prepared to offer as an inducement to take such temporary positions. That is their choice. However, when bargaining unit members leave the . . . . bargaining unit for this purpose, they lose the benefits and protections of the collective agreement - including the right to accrue seniority. We were referred to SmurfittMBlv. Industrial Wookd and Allied Workers of Canada, Local 500 (Dyer Grievance), [2004] O.L.A.A. No. 283, where Arbitrator 16 . . . Surdykowski notes the division of' arbitral opinion on whether non-unit "service" can counttowards "seniority", and ultimately adopts the view that: "Anon-bargaining unit employment seniority. credit can only be granted by express language or by necessary . implication". And in the present case, the union argueS that there is no express language to give supervisors continuing seniority rights - in fact, Article 12.05(b} says the opposite. And that is the answer to any "implication" as well. * The company agrees.. with the union's description of the genera/effect of Article 12 - which links the accumulation of seniority to service in the bargaining unit, and can freeze an employee's accuri1Ulated seniority when slhe takes a position outside the bargaining unit. However, in the company's submission, this case is not determined by Article 12.05 (b) at all, but rather by Article 2.02, which, counsel submits, means something different. Otherwise, why would the parties have bothered to include that provision - particularly where, as here, the clause was added at the instance of the company, late in the bargaining process, and in the context of the discussions about seniority issues concerning supervisors? Would such clause have been added, if it had no effect on seniority at all? In the employer's submission, Article 2.02 was intended to -and does - mean something different from Article 12.05. Indeed, it was ~. and was intended to - operate as an exce{)tion to Article 12.05. 17 , . > , . In counsel's submission, Article 2.02(a) modifies the impact of Article . 12.05 in the very specific and limited circumstances described in Article 2.02(a} itself: which applies when a bargaining unit employee works temporarily outside the bargaining unit, in the specific capacity of Shift Supervisor. The addition of Article 2.02(a) prevents an employee from losing "aliv seniority" rights when slhe accepts such temporary position outside the bargaining unit: "while working"in this'temporary capacìty. In the employer's submission, Article 2.02(a)is not merely confinnatory of something found elsewhere in the agreement. Nor is it superfluous or redundant. It adds somethiD.gto the scheme governing seniority. And in counsel's submission, what it adds, is an exception to Artìc1e 12.05 (b). In counsel submission, what matters to employees is their seniority . position vis-à-vis other employees. It is their relative position on the seniority list that counts. From ihisperspective, they "lose" when there is any change to that relative position. And that is the kind of "loss" that Article 2.02(a) is addressing - and preventing. The employer submits that what Article 2.02(a) is designed to do, is . . maintain the employee's relative seniority position - to permit the employee to accept the' supervisory role "without prejudice" to hislher seniority rights that he would have had if slhe had remained in the bargaining unit all along (where, it will be recalled, the union wanted the temporary supervisors to be). Article 2.02(a) removes any disincentive or penalty for accepting a temporary supervisor position; and it guarantees the employer's 18 , . ' , access to bargaining unit employees for this purpose. It supports the practice that the employer was anxious to maintain throughout bargaining - just as Article 2.02 clarifies that when individuals occupy this role, they are not just "lead hands", but ráther are supervisors who are outside the bargaining unit. The employer points out that no one suggests that the terminology "lose any seniority" found in Article 2.02(a) means the kind of total loss of seniority, that is mentioned in Article 12.06, or Article 16.03(d). This is not a debate about "absolute' loss", but rather about relative loss. And in the employer's submission, it is that relative loss that Article 2.02(a) is designed to avoid. Counsel submits that hecauseofArticle 2.02(a), the dual's "current stanis/position" [per Article 12.01] does not change when slhe accepts this particular kind of temporary assignment; so' that hislher seniority continues to accumulate,' and slhe . maintains hislher relative seniority position, while working in this capacity. The employer further points out that when the general seniority language was agreed to in January 2003, it was riot yet determined whether duals were in the bargaining unit (as "lead hands" or otherwise), or outside the bargaining unit altogether. That was not determined until Article 2.02 was concluded sometime later - thereby confirming their hybrid status and the fact that they were sometimes outside the unit; but also raising the spectre of a loss seniority position for employees who took these temporary assignments. 19 , . . . . The employer submits that it was that potentiallöss of seniority which the company wishe<i to avoid, by adding the specific "seniority protection words", found in Article 2,02(a). So in the employer's submission, Article 2,02 acts asari exemption from the general seniority rules, in this limited, but specificallynegotiated, instance.. In counsel submission, the collective bargaining context, the sequence in which the clauses were agreed to, and what the parties were talking about at the time that Article 2.02(a) was added, all support the employer's proposed interpretation of the' . . .agreement. So does the fact that it was the employer who proposed the "add-on" provision respecting seniority, which the union ultimately agreed to - including the union concession that the duals were not lead hands, but were outside the bargaining unit. . Counsel submits once again: that in light of that concession/clarification, the additionallànguage in Article 2.02(a) was intended to - and does - have independent. meaning. Article 2.02(a) is not redundant or simply confinnatory of things found elsewhere in the agreement. It was . intended to protect the duals from the operation of Article 12. ,., ."" Finally, employer counsel points out that the parties have used the phrase "without loss of seniority" in other situations where they were dealing with individuals who were not actually at work in the bargaining unit (e.g. employees on parental leave, pregnancy leave, leave up to two years to hold union office, leave to attend union 20 . ' , ., , meetings, etc.); and that when the parties have used the phrase "~ithout loss ofseniority", they meant to prevent not only the loss of what had already been accumulated to date, but also to maintain the continuing accrual while the person was away from the bargaining' unit. That is what the words "without loss of seniority" mean in this agreement; and in employer counsel's submission, Article 2.02(a) should be interpreted accordingly - and consistently. In the employer's submission, when the parties to thisagre~ment say that an employee can do' something "without loss of seniority", they mean Without loss of the panoply of seniority fights that would otherwise flow if s/he were at work in the bargaining unit all along. * To this last argument the union replies' that if the phrasç "without loss of seni(Jrity", standing alone, meant what the employer says it means, then, it would not have been necessary to have Article 12.05(a) covering the impact of various leaves on seniority, so the provision would be largely redundant. In counsel's submission, the verbal formulations in Article 16 actually reinforce the union's position: they take one back to the general rules about seniority in Article 12, and give content to the seniority references found elsewhere. They show that the clauses were meant to be read together. The union asserts that these reference to "without loss of seniority" in Article 16 reinforce, rather than contradict, the specific stipulations in Article 12; and in counsel's submission, Article 2.02(a) should be read in the same way. In counsel's 21 . < , . , , submission, the words "without loss of seniority" mean: without loss. of seniority as . defined limited' aiJ.d protected elsewhere in. the agreement - which in the situation before us, takes on back to Article 12.05(b) and means that that the employee retains, but does not accumulate, additional seniority credits. * In. effect, the union argues. that the phrase "will not lose any seniority under this agreement" found in Article 2.02(a) should be read as if the words "in accordance with Article 12.05(b)" had been added to Article 2.02(a) - making it clear that 12.05(b) is the governing condition. Conversely, the employer argues that we should' read the disputed words in Article 2.02(a) as if they where preceded by the phrase "despite Article 12" - making it clear that Article2.02(a) was the governing provision, creating an exception to Articles 12.01 andI2.05(b). * In summary, then, the parties propose quite different meanings for the following combination of clauses, that deal with the seniority rights of bargaining unit members who take on the temporary role of Shift Supervisor: . 12.05(b) Should an employee accept a posting for a temporary period outside of the bargaining unit but still within the employ of the Casino, his or her accrued seniority in the bargaining unit will be frozen" for that period, . and will resume accrual upon return to the bargaining unit. [agreed to in January 2003] 2.02 (a) With the employee's agreement, he or she may be asked to fill the role of. Shift Supervisor on a temporary basis. The employee will not lose any seniority under this agreement while working outside the bargaining unit in this capacity [added to the agreement in February 2003] 22 , . . . ' , The union says that Article 2.02(a) confÏnns Article 12.05(b), which is paramount; while the employer says that Article 2;02(a) modifies Article 12.05(b), and operates as an exception to that general provision. Finally, since each party urges us to. engage in a linguistic analysis, it may be useful to reproduce Article 2.02(a) onCe again, with the contractual "definition" of seniority, "plugged in": With the employee's agreement, he or she maybe asked to fill the . role of shift supervisor. on a temporary basis. The employee will . not lose any...[length of continuous service in the bargaining uirit].. ..while working outside the bargaining unit in this capacity. The union says that the employee's length of continuous service in the bargaining unit is interrupted but preserved ("frozen") while slhe is working outside the bargaining unit; while the employer says that the employee can treat this kind of outside service as if it were continuous service in the bargaining unit, so that slhe doesn't "lose" anything at all. Or to put the matter another way: on the union's theory the employee "loses" the right to accrue service while working outside the bargaining unit; while on the employer's theory, the employee does not "lose" anything at all. V - Discussion and Disposition We might begin by acknowledging that the exercise in which we are about to' engage is a highly artificial one, which may not produce the result that the parties would have reached, had they explored these issues more fully at the bargaining table. But the fact is: they didn't. The company made a proposal in the later stages of 23 . , , , , bargaining, and the union accepted that proposal, without any specific' discussion about what. the' words. actually meant - that is,. without any specific discussion about whether the words that were being added to the collective agreement at the request of the employer, were congruent with other clauses or principles found elsewhere in the agreement. No doubt, each party had its own view of what Article 2.02(a) accomplished. But neither party sought to test that view with the other, through a process of explanation, elaboration or argument Instead, it appears that each party "kept its powder dry" to argue its own view, should the need arise; and neither party was inclined to have any further discussion about that, in the 11 th hour of bargaining - or to risk derailing the process of achieving agreement by explooog the impact (if any) of Article 2.02(a), They were content to leave any ambiguities or potential interpretation issues unexplored, and unresolved. That is also apparent from the text of the parallel "letter of understanding", which was agreed to at the same time as Article 2.02(a), and which acknowledges that the use of temporary shift supervisors raises issues that were not resolved at bargaining - and perforce, might have to be dealt with later. There' is nothing wrong with, or even unusual about, parties taking that kind of stance in the later stages of bargaining. Sometimes it is wiser to "agree' to disagree", or to avoid exposing new areas of disagreement, that could delay an impending settlement. Sometimes it is wiser to leave the wording ambiguous. And sometimes it is 24 , , , .' , wiser to let an arbitrator make the decision, later, rather than make a clear and concrete "concession" at the bargaining table. We decline to speculate. These tactical judgements are all part . of the bargaining process, and are familiar to anyone who has been at the bargaining table. But in the result, an arbitrator can sometimes be left (as one wag putit)"like a Martian with a dictionary" - trying to glean the meaning of disputed words by looking at dictionaries, from the overall structure of the agreement, from the way in which words are used in other clauses, from general arbitral principles, and from the highly artificial "rules of construction" borrowed from the common law. Moreover, that task can be particularly daunting when one is dealing with a first collective agreement. where there is no prior history of bargaining, and no past practice to illuminate the rights and obligations that the parties have put into words for the firsttime. Because such first agreements are seldom a model of clarity. Nevertheless, an arbitrator is obliged to render a final and binding detennination of the. dispute, even in cases like the present one, where there is no direct evidence of the parties' . intentions - indeed, where there is every likelihood that there was no "shared intention" at all, other than an agreement to the words themselves, whatever their actual effect might be. *** With these reservations, then, we turn to the words of the collective agreement before us, and the context in which we have to construe those words. 25 ., , . *** .. As we have mentioned above (and as Arbitrator Surdykowski elaborated in the Smurfitt case): arbitrators have differing vìews about whether employees can earn seniority credits for time spent outside the bargaining unit. Arbitrator Surdykowski expresses one view: 'generally not'. But there other arbitrators who take a different approach, putting the onus squarely' on the party seeking to limit such accumulation. In Mitchnik and Etherington "Leading Cases on Labour Arbitration" the authors describe the controversy this way (at page 18-50.3) There has been a serious division of opinion among arbitrators as to whether an employee should receive seniority credit for periods spent outside the bargaining unit once he or she returns to the unit. As with most seniority issues, the matter is to be resolved by resort to the language used in the collective agreement. However, difficulties arise when the agreement does not provide . a dear answer. One school of opinion, sometimes referred to as the "Laskin school"...holds that because seniority is purely a collective bargaining concept, the accuinulationof seniority is generally restricted to time employed within the bargaining unit, unless there is express language to the contrary. However, another group of arbitrators has adopted an opposing view premised on the importance of seniority to. the individual employee, drawing an analogy between. seniority and property rights. These arbitrators contend that as long as the language of the collective agreement. is broad enough to cover out of unit employment, a non-bargaining unit employee may retain, accumulate and exercise seniority. (emphasis added) However, while the cases continue to go both ways, there is a marked "inclination" to favour the position of the individual employee, where that employee started out in the bargaining unit, left for a time, and then returned to the bargaining unit later on. In that circumstance, there. is an inclination to favour the accumulation of seniority. as an individual right. unless there is some specific contract language 26 . . ' preventing it (see for example, the comments of E.E. Palmer in Collective Agreement Arbitration in Canada, 2nd at pages 492 - 499, and also the review of the cases by arbitrator La Forest in Cape Breton Children 's Aid Society and CUPE, Local 3577 (1996), 61 L.C.C. (4th) 70). Finally, no one seriously quarrels with the importance of seniority, or with the oft':quoted comments of Reville J. in Twig Sol Canada Ltd. (1964), 15 L.A.C.161: . Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its . . members by virtue of the collective bargaining process. An employee's at seniority under the terms of a collective agreement gives rise to such important rights as relieffromlayoff,rightto recall to employffient, vacations and vacation pay, and pension rights,. to name only a few. It follows. therefore. that an emvlovee's seniority' should. onlv be affected bv very clear language in the. collective' . agreement concerned. .and that arbitrators should construe the collective. aJ!Yeement with,' the. utmost strictness wherever it is. contended that an emplovee's. seniority has been' foifeited. truncated or abridged under the relevant sections of the collective aJ!Yeement. I emphasis added] * These are the general principles - the backdfop of arbitral jurisprudence - against which parties negotiate their collective agreements; and, whatever else this jurisprudence shows, we think that it is now clear that if someone wishes to limit the accumulation of seniority, it is necessary to use very clear language to accomplish that result: if you want to limit someone's seniority, you must say so very very clearly. Because if you don't, the "individual rights approach" adopted by many arbitrators, together with the "strict construction" approach described in Tung Sol, will combine to pennit a regular bargaining unit employee to accumulate seniority for periods of service 27 , ( . < , outside the bargaining unit - since any ambiguity in this regard, may be resolved in favour of the individual. Moreover, parties negotiating collective agreements, should be taken to understand the jurisprudential context in which they operate, and the way in which arbitrators are likely to approach the wordS that they use. They should be taken to know that, mthisarea, there is an inclination to "strict construction"for any clause designed to limit the. seniority rightS of bargaining unit employees. * . In the present collective agreement, of course, the issue of general principle has been resolved by Article 12.01,' which defines seniority in tenns of .' .' continuous service in the bargaining unit. That said, we do not think that the collective agreement language in Article 2.02(a) is as "clear" as either party says it is. For in our view, the critical phrase in Article 2.02(a) - "will not lose anv seniority under this agreement' - is open to both of the entirely plausible alternative interpretations. that the. parties proposed to us. Both counsel "made a good case". 'In our opinion, therefore, the words are ambiguous, and there is something to be said for both parties' positions. The question is: which view is to be preferred, when the agreement is read as a whole, in light of the bargaining history. mentioned above, and in view of the standard "canons of construction"? Or, to put the matter as the parties did: should Article 2.02(a) be read as an exception to Article 12.05 (b), or merely a confinnation of it? 28 , . . . *** We have carefully considered the parties' arguments; and while the matter is by no means free from doubt, it is our opinion, that it is the former view - the employer's position - which' is to be preferred. We have come to that conclusion by reference to what the clause says, to what the clause doesn't say, ànd to how similar issues are dealt with in other parts of the collective agreement.. No one consideration is conclusive. However, we think that the cumulative effectòf these considerations, is that the employer's proposed interpretation of Article 2.02(a) is the preferable one: that employees can take on these temporary assignments as shift supervisor, without prejudice to their seniority rights or their position in the bargaining unit. In our view, Article 2.02(a) removes the disincentive'-:- the "penalty" -that might otherwise be associated with accepting such positions, if Article 12.05(b) were left. in the agreement all by itself and were not modified bÿthe presence of Article 2.02(a). *** We note first of all that when Article 2.02(a) identifies the 'thing of value' . which the employee "will not lose~' when taking the temporary' position, the agreement. does not specify that the 'valuable seniority thing' that is preserVed, is the employee's "accrued seniority" - the combination of words that one finds in Articles 12.02, 12.03, and 12.05. Had that additional adjective been used, it would strengthen the union's position, by distinguishing between the two . aspects of seniority rights: "accrued seniority" and the right to continue "accrual". 29 , , . . ~ Accordingly, if the clause had said that the employee "will not lose" any of his "accrued seniority", it would give the wording of Article 2.02(a) a more restrictive cast, consistent with the union's proposed interpretation: (1) that the employee does not lose his accrued seniority, but(2) HE DOES LOSE his right to anything more than that - . . in particular, the right to accumulate seniority, and thus maintain his relative position on the seniority list, (which is, in fact, a crucial seniority right in this workplace). But Article 2.02(a) refers instead, more broadly' and elastically, to . . preventing the employee from losing "...ANY seniority while working' outside the . . bargaining unit..."-leaving the language open to the broader interpretation proposed by the company: that the employee in question does not lose any seniority rights at all while working in this capacity for temporary periods outside the bargaining unit The fonn of words chosen, and the contrast with the combinations of . words used elsewhere in the agreement, make it more likely that the' phrase "anv seniority" includes both retention and accrual - as if the phrase in the agreement had said "the employee will not lose anv seniority rights under this agreement........while working outside the bargaining unit". Indeed, the fact that the clause applies to the individual "while working" in the different capacity, in itself supports the intention to' capture an accrual concept. The clause does not say there will no loss of seniority "when" or "because" the employee has taken a supervisory position. The clause does not refer to a 30 t" , h , discrete happening, the seniority consequences of which are avoided. Rather the words themselves suggest "accrual" - the building up of seniority, day by day, "while working", just as the individual would build up seniority while working in the bargaining unit. The clause applies not just on taking the assignment, but for. the whole time .that slhe is working in that assignment ("while working") - it covers a span of time, day by day. The way in which the clause is framed suggests that slhe is not to lose the seniority which slhe would otherwise build up "while working" outside the unit. * We also note that there is nothing in Article 2.02(a) which specifically prohibits "accrual" - as there is in both Article 12.05 and Article 14.05 ( whichprovides that an employee on layoff "...shall retain but not accrue seniority..."). In other words, the wording to accomplish the result urged upon us by the union is actually found, explicitly, elsewhere in this collective agreement. Had that phrase "retain but not accrue" been used instead of "will not lose ANY seniority", the union's position would have been unassailable. But there is nothing in Article 2.02(a) to that effect. The words do not take away anything. On the contrary, the thrust of the wording is "protective", and applies for the whole time, while the employee is working as a supervisor. So in order to get to that alternative, negative, outcome, where an employee loses a very important seniority right, the union has to goto Article 12, to argue that Article 12.05(b) is paramount, and to assert that Article 2.02(a) has no independent meaning at all- a point to which we will return later. * 31 ., '. .. < , . We might further note, for comparison purposes, that there are a.number of instances where bargilinÌng unit employees engage in activities which do not involve work in the bargaining unit; and the agreement provides that they can do sò, "without loss of pay" - or sometimes that they will' "suffer no loss of pay" when' so engaged. When these clauses are triggered, the employee is treated as if he had been at work in his regular position all along. That is the effect of the "without loss of' or the "shall suffer . . no loss. of' wording.. It allows the employee to engage in' such activities, . without. . prejudice to hislher economic position. It removes the disincentive to do these things. That is how the company urges us to read Artic1e2.02(a) as well: to hold that the affected employee will not prejudice his nonnal seniority'rights.-'- including the right to accrual - while. he is working outside the bargaining unit. Just as an em~loyee continues to be paid when he is allowed to do something "without loss of' pay, the employer argues that an employee continues to accrue seniority, when he takes a supervisory position, and "while working' in that supervisory position. Just as the "without loss of' wording, modifies the norrharassumptionthat one only gets paid for working;' the employer says that the "will not lose any seniority" fonnulation, modifies the nonnalassumption -underlined by Article 12 -that persons outside the bargaining unit do not nonnally accumulate seniority. The "will not lose any" wording prevents the kind of loss and disincentive - be it pay. or . seniority - that , ¡, -- employees might otherwise suffer when they perfonn the alternative duties. 32 " , " . !nour view, Article 2.02(a) has a similar purposè (to avoid penalizing an employee taking a temporary position), and it is desirable to read that clause, and those words, in a consistent manner - to remove the "seniority disincentive", just as the other kind of clause removes the "wage loss disincentive",' for employees when they are involved in doing something other than their normal work. * In our opinion, that is the normal and most natural reading and effect of . the "will not lose" words, used by the parties in this agreement. * . There is no language in Article 2.02 making that provision "subject to" Article 12, or suggesting that Article 2.02(a) should be read "in accordance with" Article 12 -'- which is to say, suggesting that the phrase "will not lose any seniority under this agreement" can he given content by express reference to Article 12, or that Article 12 overrides Article 2.02. Once again, phrases like that - "subject to" and "in accordance with" - are fairly common elsewhere in this collective agreement; and had the phrase "subject toArticle 12.05(b)" or "in accordance with Article 12" been inserted into Article 2.02, there would be no doubt about its meaning: that Article 12 would govern. But words like that do not appear in Article 2.02. Rather, Article ~.02(a) reads as a stand-alone provision, dealing with specific subject matter; and, after much consideration, we accept the company's position, that unless the second sentence is Article 2.02(a) is meaningless or redundant, then it must add something, or modify something, or serve some purpose other than the one that is already effected by Article 33 , , . , , . 12. It was put there for a reason, and to produce a result that would be different from the resultthat would occur if the added wording had not been put into the agreement at all. And the most natural reading -- the one that gives Article 2.02(a) some independent meaning -- is to regard it as anexcetJtion to Article 12, rather than merely declaratory of what is already in Article 12. * There are several rules of construction which support that proposition. * First of all, there is the rule against redundancy; to which we have already referred: when interpreting a contractual document, one should not adopt a construction which would make words or clauses meaningless, or. superfluous. There is a presumption that when the. parties put words into the agreement, those words are intended to have some independent meaning. The add-on, late in the bargaining, changed something. There is also a rule of construction that where there appears to be a conflict in an agreement, that part of the agreement which appears first, ovemdes what is written later, unless the later clause clearly indicates that it overrides the fonner one. Which is not the case here: there is no "notwithstanding" or "despite" language in Article 12.05. These rules of construction are buttressed in this case, by the further principle that a specific provision (here Article 2.02(a)) which deals with the seniority rights of supervisors in a particular situation, takes precedence over a' general one (here 34 '. , "' , Article 12.05(b)), which deals with anyone who takes any kind of position outside the bargaining Unit. Both clauses deal with "seniority rights"; but Article 2.02(a) is much narrower, and is therefore the governing provision. Finally, it is not without significance that the disputed clause was added to the agreement after Article 12.05 had been already agreed to; and that Article 2.02(a) was proposed and accepted in the shadow of discussions designed to provide a basis for the employer's view of things - rejecting the lead hand notion advanced by the union, and attempting to protect employees who choose to accept these temporary assignments. * The timing and content. of the clause suggest an "add on". - not. a confinnationofwhat is already there. And in our view, the add on was intended to, and does, mean something- it is not a superfluous clause toconfirin the union's understanding ofthings, as already expressed in some other provision of the agreement. It was meant to effect a modification of what had already been agreed to, and to settle some things that haq not yet been agreed to. It qualifies and modifies Article 12.05. * We accept the union's stipulation that, at the time that Article 2.02(a) was. proposed and agreed to, the union may have assumed that the new clause did not change anything; and that the union also concluded, at the time, that it was unnecessary to share that opinion with the employer, or to find out whether the employer had a different view. However it is far from obvious that this was a correct or even a reasonable assumption, in light of the discussion of a few days before. In those discussions, it will be recalled, the 35 , , .. f . , employer was intent upon making'it clear that temporary shift superVisors Were outside the bargàining unit; and the employer was also intent upon protecting their seniority . . position, when they accepted such tem{>orary assignments. . Against that background, we do not think that theuriion should have . . lightly assumed that the new clause, proposed by the employer - a claUse that adopts the employer's wording and that plausibly accomplishes both employer purposes,. actually accomplishes only one of them. * The clause, as framed, confirms that the subject individuals are outside the bargaining unit (which was the employer's position from a few days before); and it is entirely consistent to suggest, (as the employer does here) that the clause reflects the employer's position on the other element discussed -removingthe disincentive- as well. Certainly that is what the employer thought that it was addressing at the time; and that is why the employer proposed the additional language in Article 2.02(a). But in any event, it is also a sensible construction of the effect of adding Article 2.02( a);' and it avoids. the odd result that the added-on clause, in fact, adds nothing - or that a provision that says that employees will not "lose any seniority" "while working", as a supervisor, really means that the supervisor will actually lose a very important seniority right, and that the longer he works in the capacÎty, the greater his relative loss will be. lt seems to us that, given the way that the bargaining unfolded, the union must, at the very least, have been alerted to the fact that, in the context in which that add- 36 . . ~ . . , . on proposal was made, the addition of Article 2.02(a) was intended to CHANGE SOMETHING about the employee's seniority position, in the manner described by the . . . emplòyer at the time. Why else would that seniority issue be mentioned? Why add a new clause talking about seniority for persons outside the bargaining unit, when that issue was already (the union says), fully settled by Article 12.05? Yet the union's position is that the clause adds nothing at all about seniority, and that the new clause, in fact, maintains the very "disincentive" that the employer was trying to remove (recall that no one suggests that the employee will ever "lose" his accrued seniority altogether).' To be clear: we do not suggest that the operational impact ofa loss of seniority accrual (the "penalty" that concerned the employer) is an independent reason to reject the union's proposed interpretation. Clauses agreed to in collective agreements, often have undesirable results from one parties' perspective or the other; and that undesirable consequence does not control the meaning. However, the proposed immunity from that. kind of "loss" serves to. underline the reason for the employer's addition of Article 2.02(a), as well as support a reasonable interpretation of the effect of that clause - rather than, as the union suggests, that Article 2.02(a) has no effect at all, or that the parties would go to the trouble in Article 2.02(a) to speCify that the duals would not "lose" something, that they would not "lose" in any event, because of the already agreed-to Article 12.05(b). * 37 , . , , . We agree with. colinsel. for the union that we should be careful about refetring to the "rule agaìnst redundancy" in a first collective agreement - particularly in this first collective agreement, which is rife with redundancy and superflùous'language. . . For to take but one example: it is unnecessary in Article 16.07(a) to specify that "pregnancy leave will be given as provided in the. Employment Standà'rds. Act, without . . loss of seniority or service", because these statutóryrights are aJreadyiricorporated into . . . the collective agreement by operation of law, and the statute itself provides that there will be no loss of seniority. The entire clause is unnecessary; and so is that specific portion of the clause referring to "without loss of seniority". Indeed, the specific seniority protection in Article 12.05(a) is also unnecessary, and for the same reason. Furthermore; if the loss/freeze fonnula is already found in Article 12, why is it necessary to mention seniority at all, in Article 16 - or to stipulate in Article 16.09 the effect of "Military Leave", when that is already provided for, in Article 12.05(a)? Nevertheless, given the context in which Article2.02(a) was created, and its position in the collective agreement, we' do not think that it. is superfluous, or . . redundant, or thatitadds nothing to the agreement, other than what is already fotind in Article 12.05(b). Rather, in our view, Article2.02(a) has an independent meaning, as an exception to Article 12.05(b ).It provides that an employee who chooses to take this particular kind of assignment, may do so without prejudice to the seniority rights that he would otherwise have, if he were working in the bargaining unit. * 38 .. ' , , .. ~ , We are further reinforced in that view, by the coilsistent meaning of the . phrase "without loss of seniority"found elsewhere in the agreement - notably in Article 16. For while that reference may be redundant in Article 16, (because the issue is already "covered off' in Article 12.05(a)), we think that those words "without loss of seniority" ,. nevertheless do capture a purpose - and provide an indication of party intention - that Article 16 shares with the similar verbal fonnulation found in Article 2.02. Those words confirm that individuals may be away from the bargaining unit, without prejudicing their seniority rights. It is true that leaves of absence are also addressed in a Article 12.05(a), and that this latter provision says that an employee both retains and continues to accrue seniority while on leave. But the fact remains that when the stand alone phrase, "without loss of seniority", appears in this collective agreement, in connection with activities away from the bargainiilgunit, it means both the retention of whatever seniority has been accumulated, and a continuing right to a accrue seniority. In other' words, those "immunizing words" - without loss of seniority "' signal the parties' intention that being outside the unit in the manner described in the clause, is to have no adverse effect on the employee's seniority rights. Someone on parental leave, or pregnancy leave, or away holding a union office is allowed to be away (and not working) "without loss of seniority" - which in those instances clearly means that they do not lose anything: they retain what they have and they continue to accrue. 39 < , . , - , Which is also what is expressly provided for, in the case of "Military Leave" ~ where the "loss of seniority" words are missing, but the agreement specifically provides, that "the employee 'sseniority and service will continue to accrue at the normal full rate during such leave". It appears to us that the intention of the parties is to treat allöfthese leaves of absence in the saine way, so that the person on pregnancy leave "without loss of seniority", is in the same position as a person on military leave whose "seniority and service will continue' to accrue at the normal rate during such leave". The two phrases, mean the same thing; and in our view, that is what those words mean in Article2.02(a), , as welt * ,In our opinion" this is an additional linguistic clue to the meaning that should be ascribed to the phrases "without loss of seniority" or "will not lose seniority;'. The words mean "will not lose" what,You have, plus, "will continue to accrue"'whileyou are away from the unit. * Against that background then, (and redundancy aside), it seems to us that when employees are off doing something other than their nonnal work in the bargaining unit "without loss of seniority", then the parties envisage that' their right to, accrue seniority will be preserved. That is what the phrases "without loss of seniority" or "will 40 . ' , ~ " " ~ , not lo$e any seniority" mean in this collective agreement. Conversely, where it is intended to foreclose the accumulation òf seniority (for example: for employees on layoff who would otherwise continue to accrue seniority, unless some clause said that they couldn't) the parties have expressly said so - as in Article 14.05 or Article 12.05(b) or Article 12.02and 12.03. And they have also expressly dealt with where employees lose their accumulated seniority altogether - in Article 12.06 and Article 16.03, but not in Article 2. * Throughout the collective agreement, the phrase "without loss of seniority" means retain plus, accrue. That is what it means in Article 16; and in our view, that is what that kind oflanguage means in Article 2.02(a) as well.. * ,In summary then, we agree that the union's proposed interpretation is more consistent with the general seniority rules, prescribed in Article 12. However, given the way in which the collective agreement has been put together, we agree with the employer that the addition of Article 2.02(a), late in the bargaining process, created a specific and limited exception, for bargaining' unit employees who take on a temporary position as Shift Supervisor. For the foregoing reasons, the union's complaint with respect to the calculation of seniority is dismissed. 41 . ~ , " , < ~ , ~ , v - A final comment As we understand it, one of the grievances to which we were referred, involves an additional issue: whether a temporary supervisor worldng outside the bargaining unit, should get a lieu dayoff, as provided for in the collective agreement - an outcome, which the company sought to obtain by, having these individuals "sign in" as regular employees, even though they were actually going on tò perform the role of shift supervisor that day. Accordingly, as we understand it, this grievance therefore raised not only the seniority issue discussed above, but' also the question of whether a dual could get the "lieu day benefit", prescribed in the collective agreement, when s/he was' actually working outside the bargaining unit - indeed, when the recognition section of' the agreement had been specifically modified, during the course of bargaining, to make it clear that the temporary Shift Supervisors were outside the bargaining unit, and outside the ambit of the collective agreement. * Accepting, as we do, that the employees in question are outsIde the bargaining unit and are not covered by the collective agreement at all, (the position that, the employer took on the seniority question - reinforced by Article 2), this sign-in practice would appear to be a transparent fiction, engaged in for the sole purpose of avoiding the consequences that'f1ow from the employer's argument - and ftom what the employer achieved when the union accepted Article 2.02. Moreover, [unlike Article 2.02 (a)], there appears to be no specific modifying provision, allowing temporary supervisors, 42 , , '. '< , , , .. ¥ . outside the bargaining unit, to take advantage of clauses that would apply to them, if they were working in the bargaining unit" covered by the collective agreement. Or at least" no such modifying clause was drawn to our attention in the course of argument. However, we decline to make any ruling inthat regard, because the parties arguments at the hearing concentrated solely on the meaning of Article 2.02(a);and no one addressed the other subsidiary issue; buried in one of the grievances. Accordingly, we will remain seized to address that question, should the parties be unable to resolve it between themselves. f\' " , ' Dated at Toronto, this~"day of ",~' 2005. '~ I agree. "Clay Appleton" I. dissent " Ed Seymour" 43 . , .' , APPENDIX ARTICLE 14 - LAYOFF ... 14.05(a) Employees who are laid off shall be placed on a recall list and shall retain, but not accrue, seniority for twelve (12) months. ' ARTICLE 16 - LEAVES OF ABSENCE, 16.01 All leaves of absence must be requested using a Leave of Absence Request fonn. 16.02 An employee may maintain health and dental benefits (save and except disability benefits) during an approved leave if he or she arranges in advance to pay the cost of such benefits. 16.03 Personal Leave (a) An unpaid personal leave of absence may be granted for a period over five (5) days and up to ninety (90) days in a twelve (12) monthþeriod for èompelling reasons. The approval or denial of such ,leave will be based on the reasons for the request and operational ,considerations. (b) Except in cases of emergency leave, such request must be made at least two (2) weeks prior to the requested starting date of the leave, and may, only be made by employees with six (6) months of continuous employment. PTO and any other lieu time or vacation entitlement must be used prior to any personal leave co~encing. (c) Extensions of personal leaves will only be granted if sought in advance of the expiry of the original leave and are subject to the same considerations. (d) No outside work may be entered into nor may hours of work elsewhere be expanded, while on a personal leave of absence 44 ) . " .. , unless specific pennission for this is sought in advance. 'A breach of this provision will result in loss of seniority and employment. 16.04 Union Leave (a) When an, employee who is elected 'or appoìnted to a full-time position with OPSEU, the Employer shall, upon four (4) weeks' , ' written notice, grant a leave of absence without pay and without loss of seniority for the duratiòn of such leave for up to two (2) years. During this time period" the employee may, upon four (4) weeks' written notice, be returned to the position held immediately prior to the commencement' of the'leave. This ,leave of absence is limited to one (1) employee during the life of the agreement. (b) The Employer shall, upon four (4) weeks' written notice grant a leave of absence without pay and without loss of seniòrity to an employee elected as an Executive Board Member to attend at Board meetings. This leave will not exceed ten (10) days in a calendar year. This leave of absen~e is limited to one (1) employee during the life of the agreement. 16.05 Bereavement Leave (a) In the event of a death in the immediate family, an employee who has completed hislher probationary period, will be granted up to three (3) nonnally scheduled days of work (excluding regular days off and holidays) leave of absence commenCing with the'date of death and concluding with the day of the funeral. Bereavement leave will be paid at the employee's regular straight time rate' of pay and will be counted as emergency leave days under the Employment, Standards Act and represent a greater right or benefit with respect thereto. 16.06 Jury/Witness Duty An employee who has completed hislher probationary period and who is called for jury duty or subpoenaed as a Crown, witness in a civil or criminal proceeding shall receive for each day absent from regularly 45 . . , . , sched1iledworking hours, the difference between hourly earnings lost and the amount of jury or witness fee received, providing the employee furnishes the Employer with a Certificate of Service signed by the Clerk of the Court, or equivalent, showing the amount of any fee received. It is agreed that this provision does not apply to arbitration proceedings. Compensation for jury/witness duty is based on the number of hours the employee would regularly have worked on the day(s) in question. For part-time employees whose weekly scheduled hours fluctuate~ regularly , scheduled working hours will be calculated based on the average hours , ' 'worked over the thirteen (13) weeks prior to the jury/witness duty leave. 16.07 Pregnancy Leave (a) Pregnancy leave will be given as provided in the Employment Standards Act without loss of seniority or service. 16.08 Parental Leave (a) Parental leave will be given as provided in the Employment Standards Act without loss of seniority or service. 16.09 Mili tarv 'Leave Anemployee who is an active member of a Canadian Reserve Status Militia Unit will be granted an unconditional leave of absence to fulfil, hislher military obligation if he/she is called into Active Military Status, providing a copy of the official deployment standing order accompànies the Leave of Absence Application form. The, employee's seniority and service will continue to accrue at the normal full rate during such leave. Letter ofUnderstandini! # 1 At negotiations the issue of temporary Shift Supervisors imposing discipline on bargaining unit members was discussed. The employer indicated that, while it could not limit its supervisory role, it recognized the issues that could potentially arise if these individuals impose discipline. 46 , . . , v ,.. LABOUR RELATIONS ACT 1(3) Subjectto section 97 [not relevant] for the purposes of this Act,no person shall be deemed to be an employee.... (b) who, in the opinion of the [Ontario Labour Relations] Board exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. ' 45 (1) Recognition Provision - Every collective agreement shall be deemed to provide that the trade union and that is ä party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein. 56. Binding effect ,of collective agreements on employers, trade unions and employees '- A collective agreement is, subject to and for the purposes of this Act, binding upon the ~nipldyer and upon the trade union that is a party to, the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement. 114(2) If, in the course of bargaining for a collective agreement or during the operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes. 47 t (~ , , " ~ ~, IN THE MATfER OF AN ARBITRATION UNDER SECTION 48 OF , THE LABOUR RELATIONS ACT, 1995 (as amended) between Ontario Public Services Employees Union ("Th u' ") e nlon and Complex Services (The employer" or "the Casino") And in the matter of two grievancescòncerning the càlculation ~f seniority For employees temporarily assigned to the position of "shift supervisor" OPSEU Grievance # 03 278 093 and 03278131 Partial dissent of EdwardE. Seymour, Union Nominee , , I have read the Majority Award and, with respect, I must dissent in part. There were two grievances before this Panel and it is the decision relating to the calculation of seniority for bargaining unit employees, who leave the bargaining unit to fill the Acting Shift Supervisor's position, with which I am in disagreement. The parties are agreed that,there is'only one employee job classification in the bargaining unit , , i.e. Security Officer; all others are excluded. There is only one other job, and that is Shift SUpervisor, a management position. On occasion, bargaining unit members move to an "Actingß Shift SuperVisor's position on a temporary basis, and while in that capacity they have the authority to discipline. Article 12:05 of the Collective Agreement is clear; it states that, when a bargaining-unit employee accepts a position outside the bargaining unit, his/her seniority is "frozen. ß 1 ""'. . ' ",' '\ V"" Twoterms in the Collective Agreement are used quite frequently; they are "seniority in the bargaining unit" and "service with the employer." Another unique turn-of-phrase in the Agreement , ' , speaks tothe "length of continuous service in the bargaining unit from the last date of hire into current , ' status/position." That is how seniority is calculated - "from the last date of hire into current status or position - within the bargaining unit. "Seniority" ,in this Agreement has three distinct components: 1. When a person leaves the employ ofthe company, he/she loses accumulated seniority entirely. If they are rehired, it is as "new" hires, and they start anew at the bottom of the' seniority list. 2. Employees who remain with the employer and in the bargaining unit continue to accumulate seniority throughout the entire term of their employment. ,This remains so even if they are granted leaves of absence, including union leave, pregnancy leave, parental leave and military leave. 3. An employee, who accepts a temporary leave outside thebarqaininq unit, but remains a , , " Casino employee:, has his or her seniority frozenfor the length of the leave, but accumulation of seniority will resume, and continue to accumulate from the time of his/her return to the bargaining unit (Article 12:05). It is over this employee that the dispute -- between the parties is centred, and is the issue before the Panel. Another feature of the Agreement, which could be considered unique, is that employees may , " move from the part-time seniority list to the full-time seniority list. When they do so, they start at the bottom ofthe full-time seniority list and receive no credit for their employment as a part-time employee; however, their names remain on the part-:-time list. So that they tan have seniority and have their names recorded on both lists simultaneously,Article 2.02 states that: With the employee's agreement, "he or she may be asked to fill the role of Shift Supervisor on a temporary basis." The employee will not have any seniority under this agreement while working outside the bargaining unit in this capacity." As stated in the Majority Award; the parties discussed the status of Acting Supervisors , ' extensively throughout negotiations without resolution until the final stages of the bargaining process. The employer adopted the position that it wanted Acting Supervisors to remain a part of Management, with tile authority to discipline, but to continue to accumulate seniority. The Union's position was to have these employees remain a part of the bargaining unit, with "Lead Hand" status only and with no disciplinary powers.' 2 , ..'- , 'or.. ~ \ ~ "', Article 2:02A in my view was a compromise between the two, positions. The ArtiCle is both ,redundant and ambiguous, but it did resolve the issue for both parties; however, it is really nothing more than a Recognition Clause. Because of the distinctive manner in which seniority is addressed, as referred to aÞove,it was necessary to ensure that all were recognized within the Recognition Clause. , Shift Supervisors, whether full time or acting up, are not in the bargaining unit. Temporary shift Supervisors assume the full responsibilities of Shift Supervi~or, including the right to discipline. As often happens in negotiations between Union and Management, something was achieved by both parties through the adoption of Article 2:02, albeit not entirely what was wanted by either. The Union had an Agreement wherein temporary supervisors' seniority w()uld be protected "for the period , , , , worked within the bargaining unit, and would be re-activated upon their return to the bargaining unit. " The Employer achieved the right to have temporary supervisors discipline, if necessary. Also, with regard to the right-to-discipline, a letter of understanding was adopted, wherein the Employer recognized the Union's concerns regarding the disciplinary process of Acting Supervisors, while'at the same time maintaining those powers. Unlike employees, who leave the bargaining unit permanently, the Supervisor Acting up maintained the seniority forthe time spent in the, bargaining unit only and continued to accumulate seniority for those periods. In placing their interpretation on ArtiCle 2:02A, the Majority have written Article 12:05 out of the Collective Agreement which, with all due respect, they have neither the authority nor the jurisdiction to do. The Majority's interpretation would, perhaps, be understandable if there, were classifications other than security officer covered by the ColleCtive Agreement. Article 2:02 might then distinguish the temporary supervisor I security officer from other classifications; however,' there, is no such distinction necessary because there is only one classification. The Majority assert that there is no "notwithstanding" language in ArtiCle 12:05; with respect, there is none in ArtiCle 2:02 either. Such language would be a requirement to nullify Article 12:05. 3 . ,"""" ~. \., ;". .. ~ The Majority assume that "any seniority," as described in Article 2:02, includes both accrual and retention which, as far as I am concerned, is "quite a leap" as long as Article 12:05 is in the Agreement The Majority refer to Article 12:05b as a general article and Article 2:02 as more specific. Again I disagree. It is difficult to imagine how the language in Article 12:05 could be more specific- "Accrued Seniority in the bargaining unit will be frozen." Given the employer's interpretation, which the Majority have now affirmed to be correct, Acting , , Supervisors,can continue to accumulate seniority in the bargaining unit while exercising managerial authority to discipline. That is an absolutely untenable situation and one which, I believe, the language does not support. It is for the foregoing reasons that I would have ruled in favour of the Union and granted the grievance. ß¿~ ./ ~. ' , , ,fn4:)ú/I. / g ~ Edward E. Seymour, Union Nominee opeiu:343 File: OPSEUvsComplexCasNiag 4 " . J