HomeMy WebLinkAboutUnion 99-08-2 IN THE MATTER OF AN ARBITRATION
BETWEEN:
Loyalist College
- and -
OPSEU
(Union Grievance)
Before: William Kaplan
Sole Arbitrator
Appearances
For the Employer: Glenn Christie
Hicks Morley Hamilton Stewart Storie
Barristers & Solidtors
For the Union: Gavin Leeb
Grievance Officer
OPSEU
This matter proceeded to a hearing in Belleville on August 25, 1999.
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Introduction
In February 1999, the employer made an application to the Ontario Labour Relations
Board (hereafter "the Board") seeking the inclusion into the bargaining unit of three
previously excluded employees. This application was granted on March 30, 1999. The
union agreed not to contest the inclusion, but, also on agreement with the employer,
reserved its right to take issue with the seniority calculation of two of the three newly
included employees. (The third employee, as it turned out, moved to another
excluded position). The case, and this issue, proceeded to a hearing in Belleville on
August 25, 1999.
The facts underlying this case can be summarily stated. Brenda Blaind first joined the
bargaining unit on June 24, 1977. On April 8, 1991, she began work at a properly
excluded position. Mary Ann Mikel joined the bargaining unit on July 22, 1974. Ms.'
Mikel began working in a properly excluded position on July 1, 1989. It appears as if
some time prior to the employer's exclusion application, the duties and
responsibilities of both Ms. Blaind's and Ms. Mikel's job were changed leading to the
uncontested inclusion application. What is in dispute, however, is the appropriate
calculation of seniority. The union takes the position that any period of time in an
excluded position should not be counted for the purpose of determining bargaining
unit seniority. The employer takes the position that all service, both when included
in the bargaining unit, and when properly excluded from it, should be credited and, in
fact, this is what the employer did leading to the union grievance. Before turning to
the submissions advanced by the parties, it is useful to set out the relevant provisions
of the collective agreement.
The Collective Agreement
RECOGNITION
1.4 Excluded Persons
Persons who are found to be bargaining unit employees as a result of specific
decisions of the Ontario Labour Relations board or by agreement of the Council
of Regents/College and the Union, and whose former status was administrative
or excluded staff, shall be governed by this Agreement and Appendix B.
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14. JOB SECURITY
14.1 Probationary PeriOd
14.2 Accumulating Seniority and Service
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 fuil-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 was formerly the bargaining unit.
APPENDI~X B
INCLUSION PROCEDURES
The parties recognize that the question of whether or not a particular person is
or is not a member of the bargaining unit has not traditionally been dealt with
at the bargaining table, and has normally been resolved by direct discussion
between the Council/College and the Union or by the Ontario Labour Relations
Board based on the existing duties and responsibilities of the person in question.
The following conditions are applicable to persons who are employed by a
College of Applied Arts and Technology (hereinafter called "the College") in
positions designated as Administrative Staff or otherwise excluded from the
Support Staff Bargaining Unit and who are found to be bargaining unit
employees as a result of specific derisions of the Ontario Labour Relations
Board or by agreement of the Council/College and the Union:
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2. Application
This Appendix shall apply to any persons included in the Support Staff
Bargaining Unit by decisions of the Ontario Labour Relations Board or
agreement between the Council/College and the Union, from January 1, 1980,
and thereafter.
S. Seniority
Employees will be accorded full seniority based on length of service with a
College calculated in accordance with Articles 14.1 and 14.2.
Union Argument
In the union's submission, the collective agreement had to be read as a whole and in
context in order to give effect to the bargain the parties had reached. And what that
meant in this case, where the employer had effectively transferred the two employees
into the bargaining unit, albeit through the mechanism of an inclusion application,
was that the second paragraph of Article 14.3 had to be applied. Just because the
employer had gone to the Board, to give effect to its decision to transfer the employees
back into the bargaining unit did not, the union argued, provide an escape clause
from the consequences of the appropriate application of Article 14.3. Appendix B, the
union argued, was all about providing an orderly process for including employees
who had been improperly excluded and ensuring that they received full seniority
recognition. It was not there, in the union's view, to provide a back-door through
which excluded employees could obtain seniority at the expense of members of the
bargaining unit for the period of their excluded employment. Article 14.3 made
manifest, in the union's view, the joint intention of the parties that such excluded
employment not be counted.
Indeed, in the union's submission, this interpretation not only made collective
agreement sense, it also made industrial relations sense. The two employees in this
instance, during their period of properly excluded employment, did not pay union
dues and were not affected by either strikes or lockouts. There was simply no
justification for them to now enter the bargaining unit bringing with them seniority
from the period of their excluded employment. The union, Mr. Leeb argued, would
never have agreed to such a term and, in any event, the only way management's
decision in this case could be properly construed was as a transfer. And that being the
case, the seniority of the two individuals should be determined by excluding the
periods of excluded employment. For all of these reasons, and others, the union asked
for a declaration to that effect and for me to remain seized with respect to the
calculation of the seniority of both employees and any issue arising over the scope of
the words "supervisory personnel" found in Article 14.3.
Employer Argument
In the employer's submission, like the union's, the collective agreement had to be
read as a whole in order to give effect to the agreement of the parties. And in this case,
employer counsel argued, there was no basis to find anywhere in that document any
agreement by the parties that employer-initiated inclusion applications should be
treated any differently than inclusion applications brought forward by the union.
Quite simply, in the employer's view, Appendix B provided for full seniority when
an employee, as in the circumstances of this case, was ordered included by the Board.
It did not, as it might have, made that inclusion subject to the terms of Article 14.3.
This interpretation, employer counsel argued, not only gave effect to the intentions of
the parties, it also gave effect to the dear language of the various provisions of the
collective agreement. It made no sense, in management's view, that Article 14.3
would apply when the employer-initiated an inclusion application, but would not
apply when the union did so. Either the provision applied or it did not, and the
employer took the position that it did not apply for Appendix B provided a complete
code as to what was to occur when an inclusion application was granted by the Board:
seniority calculation in accordance with Article 5. For all of these reasons, and others,
the employer asked that the grievance be dismissed.
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Decision
Having carefully considered the submissions of the parties, I can only conclude that in
this case, and on these facts, the provisions of the collective agreement, most
particularly Appendix B, have been properly applied and that the grievance must,
therefore, be dismissed.
Obviously, very clear language is required to diminish seniority entitlements of
bargaining unit members. In this case, the effect of granting full seniority to the two
formerly excluded employees is a negative one relative to other employees within the
bargaining unit. Mr. Leeb argued quite forcefully that the union would have never
agreed to any provision which had this result and it is easy to understand why the
union has taken the position in this case that Article 14.3 should apply to the
calculation of seniority. No doubt most inclusion applications are union-driven and
where they are, as in the case where the parties agree that a certain person's position
should be included, there is no dispute as to the seniority entitlement. This case is,
however, different because the seniority application was initiated by the employer and
it relates to employees with long periods of excluded employment.
However, having said all of that, my jurisdiction is limited to the interpretation and
application of the collective agreement. Appendix B imposes no restrictions on who
may initiate an inclusion application. Article 2 of Appendix B says that the entire
Appendix "shall" apply to persons included by an order of the Board. The two
individuals in this case were included by an order of the Board. The entire Appendix
must, therefore, apply to them.
It is noteworthy that there is no allegation of bad faith or improper motivation in the
employer's decision to initiate the inclusion application. Presumably, if there was,
such an allegation could have been made at the Board where the characterization of
the inclusion could have been challenged as a de facto transfer. Significantly, it was
not. And after the Board decided to grant the application the only matter to be
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determined was seniority and Article 5 of Appendix B is quite clear.
The parties could have, if they had wished, included 14.3. Perhaps they should have
carved out an exception for properly excluded employees subsequently included in
the bargaining unit either by Board order or by agreement. They did not, and there is,
therefore, no basis in this case to read it in. Certainly, there is no basis to find that
employer-initiated inclusion applications should be made subject to Article 14.3 while
union-initiated applications, or agreements on consent, should not. While there was
some dispute between the parties as to what might constitute a transfer attracting the
provisions of Article 14.3, in my respectful view that is not the matter to be
determined here as the inclusion in this case results from a Board order and the
parties in Appendix B agreed on the seniority consequences of such an order.
Accordingly, and for the foregoing reasons, the grievance is dismissed.
DATED at Toronto this 27th day of August 1999.
William Kaplan, Sole Arbitrator