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HomeMy WebLinkAboutGroup 99-03-22 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") SENECA COLLEGE (the "College") AND IN THE MATTER OF GROUP GRIEVANCE ~98C401 (SUPPORT) BOARD OF ARBITRATION Robert D. Howe, Chair Sherril Murray, Union Nominee Jacqueline Campbell, College Nominee APPEARANCES For the Union Heather Bowie, Counsel Janice Hagan Rod Bemister For the College Barry Brown, Counsel Mel Fogel Jane Wilson A hearing in the above matter was held in Toronto, Ontario on March 1, 1999. AWARD These proceedings pertain to a group grievance (subsuming a number of individual grievances) regarding vacation entitlement. The matter in issue before this Board of Arbitration (the "Board") is whether bargaining unit employees hired prior to the ratification date of the current collective agreement (the "current Agreement") are only entitled to have service in the bargaining unit counted in determining their vacation entitlement (as contended by the College), or are also entitled to have part-time service counted for purposes of that determination (as contended by the Union). The case was argued on the basis of the following agreed facts (and the exhibits referred to therein): Seneca College ("Seneca") did not include part-time service when determining vacation entitlement under previous collective agreements. On March 31, 1997, Mr. Joe Clemente filed a grievance with Seneca seeking additional vacation entitlement based on the Georgian College decision. Hr. Clemente's grievance was settled without prejudice prior to arbitration. In January of 1997, the Ontario Council of Regents for the Colleges of Applied Arts and Technology (which is the bargaining agent for Seneca) and OPSEU commenced collective bargaining. A copy of the current collective agreement is filed as Exhibit 1. A copy of the executed Hemorandum of Settlement, dated September 1, 1997, is attached and filed as Exhibit 2. The Hemorandum of Settlement was ratified on September 23, 1997. In 1998, Seneca calculated vacation entitlement for those employees who had already been in the bargaining unit and who had previous part-time service with the College, without including part-time service in the calculation (the "1998 Vacation Entitlement"). As a result of the 1998 Vacation Entitlement, 38 employees filed grievances seeking a calculation of vacation entitlement including part-time service. The first grievance was dated March 25, 1998. Seneca and OPSEU agreed that the grievance was filed as a group grievance on April 14, 1998 (the "Grievance"). A copy of each of the 38 individual grievances are attached and filed, collectively, as Exhibit 3. A list of all 38 grievors, including their length of service both with part-time service included and without part-time service included, is attached and filed as Exhibit 4. None of the grievors included in the Grievance became full-time bargaining unit employees subsequent to the amendments to the Collective Agreement. Ail had become full-time bargaining unit employees prior to the amendments. The Grievance was denied at Step 2 and Step 3. OPSEU submitted the grievance to Arbitration on October 15, 1998. A copy of the Step 2 letter, dated Hay 21, 1998, is attached and filed as Exhibit 5. A copy of the Step 3 letter, dated July 30, 1998, is attached and filed as Exhibit 6. A copy of reference to Arbitration, dated October 15, 1998, is attached and filed as Exhibit 7. During the course of argument, reference was made to the following provisions of the current Agreement: 6. WORK SCHEDULES 6.1.2 Retention of Existing Hours of Work 6.1.2.1 Less than Forty (40) Hours per Week An employee hired prior to September 1, 1979, who as of that date is scheduled to work a normal work week of less than forty (40) hours per week, shall not be scheduled to work a normal work week of forty (40) hours per week while he/she remains in his/her current position, unless agreed to by the employee. 6.1.2.2 Forty (40) Hours per Week An employee hired prior to September 1, 1979, who as of that date is scheduled to work a normal work week of forty (40) hours per week, shall not have his/her normal work week reduced from forty (40) hours per week so long as he/she remains in one of the following job families .... 11. VACATION 11.1 Entitlement Effective June 30, 1991, employees on the active payroll of the College who have completed the years of continuous service specified, as of June 30th, shall be granted vacation with pay as follows: 1 - 6 years: 15 working days 7 years: 17 working days 8 years: 18 working days 9 years: 20 working days 10 years: 20 working days 11 years: 21 working days 12 years: 22 working days 13 years: 23 working days 14 years: 24 working days 15 years: 25 working days 16 years: 26 working days 17 years: 26 working days 18 years: 26 working days 19 years: 27 working days 20 years: 27 working days 21 years: 28 working days 22 years: 28 working days 23 years: 29 working days 24 years: 29 working days 25 years or more: 30 working days 11.2 Calculation of Continuous Service In determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement: - only an employee's service in the bargaining unit shall apply, however an employee's previous uninterrupted service with the College immediately prior to and consecutive with its establishment as a College of Applied Arts and Technology shall be included; 11.6 Carry-Over Recognizing the needs of the College and the desires of employees, an employee may carry over up to two (2) weeks of vacation to the immediately subsequent vacation year consistent with efficient staffing requirements and subject to agreement on scheduling of the carry-over week(s) in the following vacation year at a time satisfactory to the College. 18. COMPLAINTS/GRIEVANCES 18.1.4 Grievance "Grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. 18.7.5 Limitations The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. The following provisions of the Memorandum of Settlement (which, as noted in the agreed facts, is Exhibit 2 in these proceedings) were also referred to during the course of argument: 1. The Collective Agreement, expiring August 31, 1997, shall be continued except as amended by this Memorandum. 3. The Collective Agreement shall be amended by those terms and conditions agreed to between the parties as set out in Appendix 2 to this Hemorandum (12 pages}. 5. Nothing shall be retroactive prior to the date of ratification. In the previous collective agreement (the "previous Agreement") which expired on August 31, 1997, the material portion of Article 11.2 read as follows: In determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement: - an employee's previous uninterrupted service with the College immediately prior to and consecutive with its establishment as a College of Applied Arts and Technology shall be included; One of the amendments included in Appendix 2 to the Hemorandum of Settlement was the addition of the following words to Article 11.2: "only an employee's service in the bargaining unit shall apply, however". It is the Union's position that those words apply only to employees hired into the bargaining unit subsequent to ratification of the Hemorandum of Settlement. Thus, the Union contends that in determining the vacation entitlement of the 38 grievors for 1998, the College was required to take into account not only their service in the bargaining unit, but also their prior part-time service. In support of that position, counsel for the Union referred the Board to Georgian College of Applied Arts and Technology and Ontario Public Service Employees Union (1997), 59 L.A.C. (4th) 129 (Schiff), which held that under the previous Agreement, the count of "the years of continuous service" began on the date an employee (who subsequently became a full-time employee) was hired as a part-time employee. Although Union counsel acknowledged that from a legal point of view the only college bound by that award was Georgian College, she submitted that the aforementioned amendment to Article 11.2 was negotiated by the Council of Regents in response to that award, thereby demonstrating an understanding that the rationale of award would otherwise have been applicable to all of the colleges. Thus, she submitted that we should conclude that bargaining unit employees at Seneca College had a similar entitlement under the previous Agreement, and further submitted that this entitlement was a vested right which could only be taken away from them by express language. In support of that contention, she relied upon the above-quoted non-retroactivity clause in the Hemorandum of Settlement, and referred the Board to the following cases: Re Sola Basic Ltd. and Int'l Assoc. of Hachinists, Lodge 1168 (1976) , 11 L.A.C. (2d) 328 (Beck); Re University of Ottawa and Assoc. of Professors (1979) , 22 L.A.C. (2d) 192 (Weatherill); Re United Automobile Workers, Local 195, and B. & K. Hydraulics of Canada Ltd. (1972), 23 L.A.C. 266 (Brandt); Re Lancia-Bravo Foods and Amalgamated Heat Cutters & Butcher Workmen (1977), 14 L.A.C. (2d) 347 (Weatherill); Re United Electrical Workers, Local 512, and Tung-Sol of Canada Ltd. (1964), 15 L.A.C. 161 (Reville); Re Sault Ste. Harie R.C.S.S.B. and O.E.C.T.A. (1985), 21 L.A.C. (3d) 107 (P.C. Picher); and Re Onesimus Comm. Resource Centre and O.P.S.E.U. (1994), 39 L.A.C. (4th) 290 (Thorne). It is the College's position that the grievance should be dismissed because the grievors' vacation entitlement was duly calculated in accordance with Articles 11.01 and 11.02 of the current Agreement. Counsel for the College submitted that the grievors did not in fact or in law enjoy a right under the previous Agreement to have their part-time service taken into consideration in determining their vacation entitlement. In support of that contention, he noted the agreed fact that the College "did not include part-time service when determining vacation entitlement under previous collective agreements" He also noted that the Georgian College case was not binding upon George Brown College, and that although estoppel was rejected as a basis for dismissing the grievance in that case, it was subsequently accepted in Conestoga College and O.P.S.E.U., unreported award dated August 27, 1998 (Brent) . Counsel for the College further submitted that, in any event, this Board has no jurisdiction to determine what the grievors' vacation entitlement rights were under the previous Agreement as its jurisdiction is confined to the current Agreement, under which the grievances were filed. In support of that contention, he noted the reference in Articles 18.1.4 and 18.7.5 to "this Agreement", and also referred the Board to the following cases: Re United Steelworkers and International Nickel Co. of Canada Ltd. (1970), 22 L.A.C. 286 (Weatherill); Re Goodyear Canada and United Rubber Workers (1980), 28 L.A.C. (2d) 196 (H.G. Picher); Re Romi (Division of Ault Foods Ltd. and United Food & Commercial Workers, Local 175 (1986), 25 L.A.C. (3d) 377 (Weatherill); Re F.B.H. Distillery Co. Ltd. and Brewery Workers, Loc. 304 (1987) , 31 L.A.C. (3d) 122 (H.D. Brown); Re Hack Canada Inc. and I.A.H., Lodge 2281 (1988), 2 L.A.C. (4th) 304 (Burkett); Re Northern College and O.P.S.E.U. (1992), 27 L.A.C. (4th) 98 (H.D. Brown); and Re St. Lawrence College and O.P.S.E.U. (grievance of Lidia Price), unreported award dated December 31, 1991 (Burkett) . As a further alternative argument, counsel for the College submitted that even if it were true that the grievors had a right under the previous Agreement to have part-time service included in determining their vacation entitlement, that would make no difference whatsoever because nothing prevented the parties from changing the grievors' vacation entitlement from one year to the next through collective bargaining. In support of that position, he referred the Board to Fanshawe College and O.P.S.E.U. (grievances of Newell et al), unreported award dated Harch 30, 1994 (HcLaren) . Thus, counsel for the College argued that if the grievors did have that right under the previous Agreement, it was changed through collective bargaining without any "grandparenting". In this regard, he submitted that when the parties wished to grandparent a right, they did so through explicit language such as that contained in Articles 6.1.2.1 and 6.1.2.2. In response to Union counsel's retroactivity argument, College counsel submitted that Article 11.2 has not been applied retroactively, such as would have occurred if the College had attempted to change the grievors' vacation entitlement for 1997 or a previous year, but rather has only been applied prospectively in determining their vacation entitlement after September 23, 1997. In her reply argument, Union counsel acknowledged that the Board does not have jurisdiction to give the Union a retroactive remedy, but submitted that the Board can consider what happened under the previous Agreement in order to determine whether revised language in the current Agreement is being applied retroactively. She further submitted that the Board has the jurisdiction to decide what ought to have been done under the previous Agreement, not for the purpose of granting the Union a retroactive remedy but rather for the purpose of determining what must continue to be done in the future. Union counsel argued that the Board should follow the Georgian College award rather than the Conestoga College award, because the latter was based upon promissory estoppel which has no factual support in the instant case. Her response to College counsel's submissions regarding the lack of a "grandparenting" clause was that there was no need for such a clause, because vacation entitlement is an economic benefit which can only be taken away by express language. She also referred the Board to Article 11.6 in support of the Union's case. The Sola Basic case (supra) is authority for the proposition that vacation pay is a fringe benefit which is earned by an employee through service, and which is not to be taken away or reduced except by express language. In that case, employees who were on lay-off on the June 30th vacation entitlement determination date, and who had one year or more of service as of the date they were laid off, were held to be entitled to unreduced vacation pay benefits because the collective agreement provided that "[a]n employee with one year or more service as of June 30th, shall receive two (2) weeks of vacation, computed by multiplying his current straight time hourly rate by eighty (80) or 4% of gross total whichever is greater", and because it did not provide for reduction or elimination of those vacation pay benefits through lay-off, sickness, or any other involuntary absence. However, that case is distinguishable from the instant case in which Article 11.2 of the parties' current Agreement expressly provides that "[i]n determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement only an employee's service in the bargaining unit shall apply". In the instant case, part-time service is not "service in the bargaining unit", as "persons regularly employed for twenty-four (24) hours per week or less" are expressly excluded from the bargaining unit. Thus, Article 11.2 excludes part-time service (and any other service outside the bargaining unit, except for "an employee's previous uninterrupted service with the College immediately prior to and consecutive with its establishment as a College of Applied Arts and Technology") from the determination of an employee's period of continuous service on the active payroll for vacation entitlement purposes. Assuming (without deciding) that under the previous Agreement Seneca College employees who had part-time service would have been able to successfully grieve the College's exclusion of that service from the determination of their continuous service on the active payroll for the purposes of calculating vacation entitlement under the provisions of that agreement, we respectfully agree with College counsel's submission that any such entitlement to have that service included for that purpose has been eliminated through the last round of collective bargaining in which the negotiators agreed to the addition to Article 11.2 of the words "only an employee's service in the bargaining unit shall apply, however" In this regard, we are not persuaded that the grievors had a right to have such service taken into account in calculating their vacation entitlement under the current Agreement. Any such right which may have existed under the previous Agreement was limited to the term of operation of that agreement, and would only continue under a subsequent collective agreement if the latter contained language expressly or implicitly indicating that such service was to be taken into account in calculating vacation entitlement. In this regard, we respectfully agree with the reasoning contained in the following passage from Fanshawe College and O.P.S.E.U. (grievances of Newell et al), supra, in which arbitrator HcLaren wrote as follows (at page 19): [The Grievors] did not grieve under the predecessor collective agreement. The parties drafted revised language to deal with the issue ... in the current collective agreement. The JEQS committee motions under the predecessor agreement were merely the actions of an emanation of the parties which they were free te charge in collective bargaining and did net in fact so do. In that bargaining precess resulting in the current agreement the claims the Grievers might Nave had under the predecessor agreement were altered by action of tNe parties. For tNis Beard te determine tNat they Neld vested rights carrying ferward under the collective agreement is to rewrite the collective agreement contrary to the parties specific cellective bargaining. There were no vested rigNts. The Grievers had rights under the predecesser agreement wNicN tNey did net pursue. It is tee late fer these vested rights to be pursued under tNe revised current agreement. Having duly censidered all of tNe cases cited by Union ceunsel regarding retroactivity, we have concluded tNat the College's application of the revised wording of Article 11.2 to the grievers' 1998 vacatien entitlement (by calculating vacatien entitlement fer tNose employees who had already been in the bargaining unit and whe had previeus part-time service with the College, without including part-time service in the calculation) did not violate the Memorandum of Settlement's stipulation that "[n]othing shall be retroactive prior to the date of ratification", as it constituted only a prospective application of that revision. An example of what would constitute retroactivity in the context of vacation entitlement is provided by arbitrator of Ottawa case (supra) in which, Weatherill in the University __ after noting that the time as of which vacation benefits were to be determined under the applicable collective agreement was January 1st of each year, he wrote in part as follows (at page 196): As has been noted the present collective agreement became effective on May 1, 1978. To make any calculation of vacation benefits as of January 1, 1978, and to apply the rate of such benefits contemplated by the present agreement would indeed be to give the agreement a retroactive effect. If a college purported to apply Article 11.2 of the current Agreement to reduce the amount of vacation being carried over by an employee from the previous Agreement under Article 11.6, that might well constitute a retroactive application of the Article 11.2 revision. However, there is no suggestion that anything of that nature occurred in the instant case, and we do not find Article 11.6 to be of any assistance in deciding the grievance. If the revision to Article 11.2 had been intended to apply only to employees hired on or after the September 23, 1997 ratification date of the current Agreement, the negotiators could easily have included language to that effect, or "grandparenting" language similar to that contained in Articles 6.1.2.1 and 6.1.2.2. In the absence of any such language, we are not persuaded that the aforementioned amendment of Article 11.2 can legitimately be construed as applying only to employees hired on or after the September 23, 1997. For the foregoing reasons, we have concluded that the College duly complied with the language of the current Agreement in calculating the grievors' 1998 vacation entitlement without including their part-time service in the calculation. Accordingly, the group grievance and the aforementioned individual grievances are hereby dismissed. DATED at Burlington, Ontario this 22nd day of March, 1999. Robert D. Howe Chair I dissent. "Sherril Murray" Union Nominee I concur. "Jacqueline Campbell" College Nominee