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HomeMy WebLinkAboutUnion 90-03-30 MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) UNION GRIEVANCE BOARD OF ARBITRATION: 'JANE H. DEVLIN CHAIRMAN ROBERT J. G~LLIVAN COLLEGE NOMINEE BRIAN SWITZMAN UNION NOMINEE Appearances for the College: J. Lynn Thomson Steven Bantoft Sandra Lawler Appearances for the Union: Chris G. Paliare Marianne Kuntz Frans Brinkman The issue in this case concerns the seniority entitlement of part-time employees transferred into the full- time bargaining unit. The relevant provisions of the Collective Agreement are as follows: 1. ~COGNITION 1.1 Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff emploYees at the Colleges, save and except: - persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during College vacation periods. 14. 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. 4.2 Accumulating Seniority Seniority and service shall accumulate for all purposes under the Collective Agreement for a period of up to , but not to exceed, six (6) calendar months during the term of this Agreement during any leave(s) of absence granted, with or without pay, and during the first twelve months of absence on Workers' Compensation, pursuant to the provisions of this Agreement. This 2 provision shall not apply in the case of probationary employees who shall be required to complete six (6) months of active employment to attain seniority unless waived by the College. 14.3 Transfer Into Union A person employed by the College, who is transferred into the bargaining unit, will be accorded full seniority based on length of service. 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. 14.5 Proration of Part-time Service Where a part-time employee is hired by the College into a full-time position in the bargaining unit, which is either the same position or, is sufficiently similar in nature, he/she shall be credited with service towards completion of the probationary period, based on a proration of the hours of the part-time position to the full-time position, to a maximum period of credit of three (3) months' service, and provided such service occurred within one (1) year of the date of hiring into the bargaining unit. Article 15.4 of the Collective Agreement to which reference is made in Article 14.3 sets out the procedure to be followed in the event of layoff which includes bumping or displacement of employees based on seniority and qualifications. Article 14.5 first appeared in the 1985/87 Collective Agreement. There is no dispute that prior to its introduction, the College had a consistent practice of treating part-time employees transferred into the full-time bargaining unit as new 3 hires. Since the introduction of Article 14.5, the College has credited part-time employees hired into the same or a sufficiently similar position in the unit with up to three months' service toward completion of the probationary period as provided in.this Article. This is the first grievance to challenge the College's practice. It was the submission of Mr. Paliare, on behalf of the Union, that Article 14.3 of the Collective Agreement is clear and unambiguous and provides that an employee of the College who is transferred into the bargaining unit is entitled to "full seniority based on length of service". Although there is a restriction on the-extent to which supervisory personnel and academic employees transferred into the unit may exercise their seniority in the event of layoff, this does not affect the rights of part-time employees. Mr. Paliare further contended that Article 14.5 sets out the circumstances in which part-time employees will be given credit for service toward completion of the probationary period but does not derogate from the seniority entitlement set out in Article 14.3. In the result, Mr. Paliare requested that we allow the present grievance and direct the College to calculate the seniority of part-time employees transferred into the full-time bargaining unit in accordance with Article 14.3. 4 It was the submission of Ms. Thomson, on behalf of the College, that Article 14.5 deals specifically and exhaustively with the seniority rights of part-time employees "hired" into the full-time unit. It was contended that the use of the word "hired" in Article 14.5 and the requirement to serve a probationary period indicate that there is to be a new employment relationship with the College. Ms. Thomson further submitted that Article 14.5 prevails over Article 14.3 which is a provision of general application or, alternatively, Article 14.5 gives meaning to the term "full seniority" as it appears in Article 14.3. In other words, "full seniority" for part-time employees means the seniority to which they are entitled in accordance with Article 14.5. Ms. Thomson also submitted that if the Union's interpretation were to be accepted, certain anomalies would result. By way of example, in the event of a layoff, a long service employee transferred from the academic bargaining unit would only be entitled to exercise that portion of his or her seniority acquired in the Support Staff bargaining unit whereas part-time employee transferred into the unit would be able to exercise seniority acquired both inside and outside the unit. This, it was submitted, could not have been the intention of the parties. 5 In any event, in light of the College's long standing practice of not crediting part-time employees with seniority acquired outside the unit (except as provided in Article 14.5), Ms. Thomson suggested that it would be inappropriate to require the College to recalculate seniority for part-time employees previously transferred into the unit. Instead, if the grievance were to be allowed, it was submitted that the remedy should apply only to part-time employees transferred into the unit in the future. Article 14.3 of the Collective Agreement provides that employees transferred into the bargaining unit are to be given credit for "full seniority" based on length of service. Although this Article also restricts the extent to which certain employees may exercise their seniority in the event of layoff, this restriction does not apply to part-time employees. The clear language of Article 14.3, therefore, entitles such employees to full seniority based on their service with the College. This interpretation is also consistent with the award of a board of arbitration chaired by Professor Palmer in Conestoga College of Applied Arts and Technology and Ontario Public Service Employees Union January 10, 1986 (unreported). That award was based on the language of the 1984/85 Collective Agreement and, so, predated the introduction of Article 14.5. Based on Article 14.3, the Board determined that part-time employees transferred into the bargaining unit were entitled to credit for full seniority in 6 accordance with their length of service. Although the board queried whether such employees were required to serve a probationary period, the matter was not argued in that case. It is necessary then to consider the effect of Article 14.5. This Article provides that where a part-time employee is hired into the same or a sufficiently similar position in the bargaining unit, he or she is to be credited with up to three months' service toward completion of the probationary period provided that such Service occurred within one year of the date of hiring into the unit. For purposes of this Article, credit is to be calculated by pro-rating the hours of the part-time position to the hours of the full-time position. Article 14.5, then, addresses~credit for service toward completion of the probationary period. The Article does not, however, specify that it. is an exception to the general seniority entitlement set out in Article 14.3 or that it is exhaustive of the seniority rights of part-time employees transferred into the bargaining unit. We are also unable to conclude that the use of the word "hired" in Article 14.5 or the requirement to serve a probationary period has this effect. Part-time employees "hired" into the unit may equally be described as having been "transferred" into the unit within the meaning of Article 14.3. Moreover, the probationary period may simply be viewed as an appropriate opportunity for the College to assess the employee in 7 the context of the full-time position. Certainly in Conestoga College (supra), the Board did not rule out the possibility that an employee would be entitled to full seniority and yet be required to serve a probationary period. In any event, in our view, to read Article 14.5 in the manner proposed by the College would be to ignore the clear wording of Article 14.3 This latter Article gives transferred employees credit for "full seniority" based on length of service and the clearest of language would be required to abridge or abrogate this right. Such language is not present in Article 14.5. Upon successful completion of the probationary period, therefore, we find that part-time employees transferred into the unit are entitled to credit for full seniority in accordance with Article 14.3 We appreciate that the result of this interpretation is that part-time employees transferred into the unit will be able to exercise full seniority for all purposes whereas supervisory personnel and academic employees will be restricted in the exercise of their seniority in the event of layoff. These latter employees, however, are entitled to utilize their full seniority for other purposes and it is of note that on the College's interpretation, part-time employees would be entitled to credit for no more than three months' service. Moreover, if the position in the full-time unit was not the same or sufficiently 8 similar to that occupied by the employee when working on a part- time basis, there would be no credit whatsoever. Such a result, in our view, is anomalous when it is acknowledged that temporary employees transferred into the unit are entitled to full seniority without restriction. In conclusion, we find that the language of the Collective Agreement supports the interpretation advanced by the Union. Although Ms. Thomson suggested that in fashioning a remedy, we should take into account the College's past practice of not crediting part-time employees with seniority except as provided in Article 14.5, that practice is contrary to the language of the Collective Agreement. The practice can only be considered, therefore, if it gives rise to an estoppel. In this case, however, it was not submitted that the College had acted to its detriment on the basis of a representation by the Union of an intention to forego its strict rights under the contract. Accordingly, one of the essential elements of the doctrine of estoppel has not been made out and, as a consequence, the College's practice cannot affect the result in this case. Although this matter came before the Board by way of a Union grievance, there was no dispute that the issue raised is the proper subject of such a grievance and we are of the view that we have authority to fashion an appropriate remedy. We, therefore, direct the College to prepare a seniority list which 9 recognizes the seniority of part-time employees transferred into the bargaining unit in accordance with Article 14.3. We remit to the parties the manner in which such seniority is to be calculated and remain seized if there is any dispute in this regard and for purposes of implementation of this award. DATED AT TORONTO, this 30th day of March, 1990. Chairman See Partial Dissent Attached College Nominee "Brian Switzman" Union Nominee DECISION OF R.J. GALLIVAN I agree because of ambiKuities in the text that the collective agreement can be given the interpretation proposed by the union and accepted by my colleagues. However, as they rightly acknowledKe, that interpretation leads to anomolies with significant labour relations consequences, particularly for the union. In the event of a lay-off for example, a former part-time employee who had been transferred into the bargaining unit could have more seniority credit for having worked only one day per week for an extended period orior to the transfer than would a full-time emo].oyee whose seniority date was only one day later but who, since employment, had worked full time and been required to pay union dues throughout the whole period of employment. While that is the result requested by the union, it seems so inequitable from a normal labour relations perspective that one hesitates to espouse it. Therefore, I would not impose that result retroactively so as to undo years of previously unchallenged College practice, particularly in light of the fact that, as pointed out by counsel for the ColleEe, Article 18.3.3 of the collective agreement precludes a union grievance (as was before us) on "any matter upon which an employee is personally entitled to grieve .... "An employee's relative position on a seniority list is normally considered to be a valuable individual oersonal asset and so arguably would be a matter more Droperly raised as a personal rather than a union grievance. Such personal grievances may well arise when certain fUll time emoloyees within this bargaining unit see their relative positions on the seniority list deteriorate as a result of this Board's decision. (See Conestoga College of Applied Arts and TechnoloEy and 0PSUE, January 10, 1986, decision of Palmer, unreported.) Having nevertheless heard the union's grievance, I would limit our decision to a declaration and leave it to those who must live with it to agree mutually on whether and to what extent to give it retroactive effect.