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HomeMy WebLinkAboutKuca 99-03-2996D734 IN THE MATTER OF AN ARBITRATION BETWEEN: George Brown College of Applied Arts and Technology, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Jacqueline G. Campbell, College Nominee Pamela Munt-Madill, Union Nominee APPEARANCES: For the Union: Ursula Boynan, Counsel Laura Kuca, Grievor For the College: Stephen C. Raymond, Counsel Regina Lapworth, Manager, Labour Relations Sandi Johnson, Human Resources Advisor, Council of Regents Elizabeth Henriques, Student Intern Hearing held in Toronto, Ontario, on March 16, 1999. -2- The grievance of Laura Kuca, a programmer analyst, relates to the calculation of her seniority. Ms. Kuca first worked for the College from September 15 to December 19, 1980, as a part-time employee. She was not in the bargaining unit. Between December 1980 and November 1981, she worked for other employers. Effective November 30, 1981, she was hired as a full-time employee, subject to a six-month probationary period. In January 1996, the College conducted a review of the seniority of all support staff employees and informed the grievor that her seniority date was November 30, 1981. In response to this notification, the grievor claimed that she should have been credited, for seniority purposes, with her service in the fall of 1980. The employer maintained that her seniority date was November 30, 1981, whereupon the grievor submitted this grievance. Since the pertinent provisions of the collective agreement in force in 1981 are almost identical to those in the agreement in force in 1996 and since the parties agree that noth- ing turns on the differences between these provisions, it is not necessary for us to determine which of them apply to the calculation of the grievor's seniority. The following are the terms of the 1992-94 agreement, which was still in effect in January 1996: -3- JOB SECURITY 14.1 Probationary period An employee will be on probation until he/she has completed six (6) months of employment with the College in any twelve (12) month period. At the discretion of the College, the probationary period may be reduced for an individual employee to such period of time as the College may determine. On successful completion of the probationary period, he/she shall then be credited with seniority equal to the probationary period served, and seniority thus acquired shall be applied in the manner set out in this Article. 14.3 Transfer into Union A person employed by the College, who is transferred into the bargaining unit, will be accorded full seniority, upon completion of the probationary period, based on length of service. Part-time support staff employees transferred into the bargaining unit, after November 14, 1991, shall have their seniority prorated, upon completion of their probationary period, based on a proration of hours of the part time position to the hours of the full-time position using 1820 hours per year as constituting the hours of the full-time position. It is understood, however, that for the purposes of the application of Article 15.4, supervisory personnel and employees in the academic staff bargaining unit, who are transferred into the bargaining unit shall be entitled to exercise only that portion of their seniority, if any, accumulated as an employee in the bargaining unit or what formerly was the bargaining unit. The grievor's claim is based on Article 14.3 of the agreement. She says that when she was hired as a full-time employee in November 1981 she should have been credited, pursu- ant to the principles found in this provision, with seniority for the three months she worked in the fall of 1980. In support of her claim, she refers to the situation of another employee, named Maria Lee, who was credited with seniority for an earlier period of employment when she was hired as a full-time employee in August 1991. -4- As we understand the scheme for the calculation of an employee' s seniority under the collective agreement, the general rule, found in the final sentence of Article 14.1, is that, upon completion of the probationary period, an employee is credited with seniority equal to the probationary period. Article 14.3 operates as an exception to this by crediting employees who are "transferred into the bargaining unit" with seniority "based on length of service". We accept the submission of Mr. Raymond, counsel for the College, that Article 14.3 only applies to a person who was in the College's employ immediately before coming into the bargaining unit. That this is the only possible interpretation of Article 14.3 is clear from the use of the words "[a] person employed by the College" and the words "transferred into the bargaining unit" in the first sentence of the clause, as well as from the the balance of Article 14.3, setting out how it will apply in two particular cases. We respectfully endorse the conclusions of the board of arbitration chaired by Professor Palmer in Re Conestoga College of Applied Arts and Technology and Ontario Public Service Employees Union (unreported award, dated January t0, 1986) relating to the same provision of the collective agreement, where the board said the following (at page t0): In our view, the word "transfer" has a broader meaning than that suggested by the College. Its normal, every-day meaning, in a labour relations sense as well, covers all situations where a person moves from one job to another with the same employer. "Transfer" is a result; the cause lies elsewhere, for example, in a successful posting or, in appropriate circumstances, a decision by management untramelled [sic] by the collective agreement. The employer applied the general rule, found in Article 14.1, upon the grievor's successful completion of her probationary period in 1982. Since there was a gap in the grievor's employment with the College, from December 1980 to November 1981, she was not entitled, in our view, to the benefit of Article 14.3. -5- We are unable to attach any significance to the case of Maria Lee, upon which the grievor relies in support of the grievance. Even if the grievor's situation was identical in all respects with Ms. Lee's (which we respectfully doubt), there is no ambiguity in the language of Article 14.3 that would authorize the use of this extrinsic evidence in the interpretation of this provision. Nor is there any suggestion that the College was "estopped" as a result of the way it dealt with Ms. Lee. It follows that the grievance must be dismissed. DATED at Thornhill, Ontario, this 29th day of March 1999. Michael Bendel, Chair ! concur/I dissent Jacqueline G. Campbell, College Nominee I concur/I dissent Pamela Munt-Madill, Union Nominee