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HomeMy WebLinkAboutBenoit 98-03-04 IN THE MATTER OF AN ARBITRATION BETWEEN GEORGE BROWN COLLEGE (the College) Ontario Public Service Employees Union (the Union) GRIEVANCE OF KIMBERLY BENOIT (The Grievor) BOARD OF ARBITRATION Arthur Kruger - chair Sherril Murray- member Rene St. Onge- member APPEARANCES For the Employer - Lynn Thomson, counsel - Judi Linton - Susan Stylianis - Regina Lapworth For the Union - George Richards, counsel - Kimberly Benoit - Winston Cheung HEARING AT TORONTO, ONTARIO, NOVEMBER 17, 1997 At the outset of our heating the parties agreed that the matter was properly before this Board of Arbitration. The parties also agree on the pertinent facts giving rise to this grievance which are as follows: Ms. Benoit was hired by the College on December 3, 1990. In September 1995, she was informed that the payband 12 position she held at that time was redundant. Under article 15.4.3 she was reassigned to the position of computerized note taker, also in payband 12. She bumped Ms. Wendy Smith, the most junior of the three then employed in that position. Of significance is the fact that until September 1995, the grievor had been employed in a twelve month position. Ms. Smith's position was a "less than 12 month" position as described on page 89 of the Collective Agreement and reproduced as appendix A to this Award. When Ms. Benoit accepted this position she was concerned that, because it was a nine month position, she would face a three month layoff in May 1996. She accepted the position while reserving her right to grieve this matter. On October 31, 1995, she filed a grievance asking to bump into the computerized note taker position held by Ms. June Corry because that was a twelve month position. Ms. Benoit argued that she had more seniority than Ms. Corry whose seniority date is May 10, 1995. Ms. Benoit served in the computerized note taker position, formerly held by Ms. Smith, until January 1996 when she commenced her maternity leave. She was on maternity leave until July 12, 1996 and was on layoff for the period July 15, 1996 to August 19, 1996 when the nine month position resumed for the academic year 1996-97. Ms. Benoit's October 1995 grievance was heard by a Board of Arbitration on January 15, 1997. On March 18, 1997 that Board rendered its decision. The Board ruled that when Ms. Benoit grieved in September 1995 her grievance was premature. At that time she had not suffered any loss as a result of the decision to bump her into Ms. Smith's nine month position rather than Ms. Corry's twelve month position. She anticipated a possible loss in May 1996 but there was no basis for grieving possible loss. -3- On March 28, 1997, the grievor filed the grievance now before this Board claiming her fight to bump Ms. Cory retroactively to July 15, 1996. On May 19, 1997, Ms Benoit was again laid off because she held a "less than 12 month" position. At the heating Ms. Thomson, counsel for the college, had a severe case of laryngitis. She and Mr. Richards agreed on the following procedure which was accepted by the Board. Mr. Richards would make his argument orally at the hearing. Ms. Thomson would them submit her argument in writing both to the Board and to counsel for the Union. Mr. Richard would reply in writing. Below we reproduce Mr. Richard's argument based on our notes. Ms. Thomson's written argument and Mr. Richard's written reply are reproduced in full. The Union's Submission - A Summary. The Union argues that although Ms. Benoit was properly bumped into the position formerly held by Ms. Wendy Smith in the fall of 1995, she was entitled to bump Ms. June Corry in the spring of 1996 when she experienced her second layoff, while she was in the position formerly held by Ms. Smith. Ms. Benoit had more seniority than Ms. Corry and both were performing the same job. Therefore, the grievor could do the work Ms. Corry was doing. While the College's contends that as a "less than 12 month" employee she must accept an annual layoff of up to three months without bumping rights, the Union contends that it does not apply to employees like Ms. Benoit. The Union agrees that employees who are hired into such positions must accept annual layoffs of up to three months with no bumping rights. In the Union's view, this is not the case for someone bumped from a twelve month position into a "less than 12 month" position. The wording of the second sentence of the letter on page 89 of the Collective Agreement clearly supports the union's view when it states "where less than full time employment is identified prior to the time of hiring such employees, (emphasis added) the College may effect a layoff of such employees for a period of up to but not exceeding three (3) months in any employment year without regard to the provisions of the Collective Agreement." The Union further argued that if this Board found the phrase "prior to the time of hiring" to be ambiguous, then the Board was entitled to consider extraneous evidence and should so do. These same parties, in the academic collective agreement, article 27.06, have included language under the layoff and bumping provisions which provide for a bumping sequence, first into year around positions and, only if no such positions are available, then to part-time positions" upon acceptance of the identical employment conditions as the part-time employee concerned..." That agreement, unlike the one before this Board of Arbitration, explicitly provides for bumping into a less than full-time position with the consequent acceptance of all the terms and conditions of such a position. In the matter before this Board, nothing in the letter on page 89 (appended to this Award) and nothing in any other provision of the Collective Agreement provides that an employee bumped, rather than hired into a part-time position, loses all rights other those available to a part-time employee. Had the parties intended this to happen, they would have included language similar to what these same parties wrote into the academic staff agreement. The fact that they chose not to do so shows that they intended a different result in the matter before us. The Union asked the Board to rule that Ms. Benoit was improperly denied the right to bump Ms. Corry in the spring of 1996 and that she is entitled to compensation for lost income both in 1996 and 1997. The parties should try to resolve the matter of compensation, but the Union asked the Board to remain seized of this matter in the event the parties were unable to agree on the amount owing to Ms. Benoit. The Award As the College has already noted, an almost identical grievance under this agreement has been adjudicated by arbitrator M. G. Picher in Re: Fanshawe College and Ontario Public Service Employees Union, grievance of Barbara Ford (unreported). In that case, the grievor Ms. B. Ford, was laid off from a twelve month position into a nine month position in a lower payband. The grievor at Fanshawe had more seniority than either of the two incumbents in her new position and one of these incumbents was in a twelve month position - a circumstance identical to the one before this Board. Nonetheless, the arbitrator concluded that although "it is arguably counter intuitive to contemplate a bumping outcome in the circumstances of a layoff which leaves a senior employee with a lesser degree of job security than persons who work in the same classification and are junior to herself, that is precisely the result that is contemplated in this collective agreement." Mr. Picher carefully examined article 15. Counsel for the College has accurately summarized his findings in the submissions she wrote to this Board reproduced above and we will not rehearse them at length. The only distinction between our case and the Fanshawe Award is the argument by counsel for the Union concerning words in the letter on Page 89 of the agreement. As far as we can tell this argument was not made by counsel in the Fanshawe case. The Union argues that only employees initially hired into less than twelve month positions must accept layoffs of up to three months without bumping rights. In the Union's view, this is not the case for employees bumped into such positions. The Union's argument gave us reason to reflect on this matter and to consider the possibility of deviating from Mr. Picher's view. However, we are not persuaded by this argument. The second sentence in question is ambiguous. It could mean what the Union suggests. It could also be read as referring to positions designated as less that twelve month positions before anyone is hired into them but that such positions remain less that twelve month positions regardless of how they are later filled. As for the extrinsic evidence, we have carefully examined the provisions of articles 27.05 and 27.06 of the Academic Agreement between these same parties. The Union asked us to look at 27.06(iii) and note the use of the words "identical employment conditions" to describe what conditions apply to someone bumped by layoff into certain jobs. Mr. Richards pointed out that these or similar words could have been used in the letter on page 89 of our agreement but are not found there. Therefore, Ms. Benoit, in bumping in Ms. Smith's position did not accept "identical employment conditions" to those of Ms Smith but retained her right to bump whenever laid off for whatever reason. Mr. Richard's reference to the academic agreement is a two edged sword. In that agreement the parties develop a bumping arrangement for full time staff that provides for bumping into full-time jobs if available and bumping into part-time jobs only if this is not possible. Similar wording in our agreement would have resulted in Ms. Benoit bumping Ms. Cory and not Ms. Smith in 1995. The parties could have used the same system here as in the academic agreement but chose not to do so. Accordingly we do not find the extrinsic evidence helpful in this matter. We find nothing in the letter on page 89 that would cause us to deviate from the very persuasive reasoning of Mr. Picher in the Fanshawe case where he carefully analyzes article 15 of this agreement. His discussion of this matter, in our view, leads to the conclusion that there has been no violation of the collective agreement in the matter before this Board. For all these reasons we conclude that this grievance should be dismissed. Dated at Toronto, this fourth day of March 1998. Arthur Kruger concur/dissent Sherril Murray concur/dissent Rene St. Onge