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HomeMy WebLinkAbout1989-0675.Millar.92-05-07 ONTARIO EMPLOYES DE I..A COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STRE~ WE$~ ~TE 23~, T~TO, ON~R~. MSG ~Z~ ' ~LEPHONE/~LEPHONE: T80, RUE DUNOAS WEST, BUREAU 2~, TORITO [ONTAR~). MSG IZ8 FAC$~)LEI~L~COP~E : ~416) 326- '675/89, 676/89, 1138/90 ZN THE MATTER OF AN ARBITRATION Under THE CRO~I~ EMPLOYEES COLLECTIVE B~RGAIN~N~ BeEore THE GR~EV~CE SETTLEHENT BO~RD BETWEEN OPS~U (Mitlar) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: R. Verity Vice-Chairperson M. Vorster Member D. Clark Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE P. Pasieka EMPLOYBR Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING May 21, 1991 November 21, 1991 2 DECISION Jim Millar worked from 1978 to 1990 as an unclassified seasonal employee at the Ministry's Chatham District. In two grievances dated May 4, 1989 and a third grievance dated May 15, 1990, Mr. Millar claims that the Ministry violated the collective agreement by its failure to recognize his seniority rights. These grievances relate to the grievor's right to recall for spring work under Article 3.21.1 of the collective agreement. In 1985, new provisions were added to the collective agreement to confer certain seniority rights upon seasonal employees. The following provisions of the collective agreement are relevant: DEFINITION 3.18 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36-1/4) or forty (40) hours per week, as applicable. PROBATIONARY PERIOD 3.19 The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position in the same ministry. 3 JOB SECURITY 3.21.1 Seasonal employees who have completed their ~probationary period shall be offered employment in their former positions in the following season on the basis of seniority. Since 1978, the grievor has worked as a seasonal employee in the forestr~ and resource planning branch of the District under a series of term contracts. For the 1988-89 season, he was employed as a seasonal employee (Group 3 Unclassified) and paid at the level of Resource Technician 2 from September 26, 1988 to February 3, 1989 and from February 6, 1989 to February 24, 1989. In the following season, he was similarly employed under a term contract (Group 3 Unclassified) from September 5, 1989 to March 31, 1990. According to the grievor, he performed fall duties such as seed collecting, stocking and inspection of sites, tree survival counts, and fall spraying of herbicides. He testified that winter duties included ~nspecting and marking woodlots, map marking, and preparation for spring t~ee planting.. By choice, the grievor has not worked for the Ministry since the expiration of his final contract on March 31, 1990. The grievor's claim is for compensation for lost wages for spring work that he should have been asked to perform in 1989 and 1990. Apparently the District's spring program occurs in April and May and consists primarily of tree planting and spraying of herbicides. The spraying program consists of hand spraying and machine spraying (all terrain vehicle (A.T.V.) with attached spray 4 unit). The tree planting program has three components - machine planting, new hand planting and refill hand planting. There is no dispute that the grievor has performed both machine tree planting duties and spraying duties in previous years and that he has successfully passed the probationary period. In 1989, Norm Dumouchelte, a seasonal employee with less seniority than the grievor, performed A.T.V. spraying under a'term contract (Group 2 Unclassified) from April 6 to May 17, 1989. Similarly, in 1990 Mr. Dumouchelle performed the same function under a contract from April 9 to May 18, 1990. In 1989 Brian Flook, with no seniority as a seasonal employee, worked as Machine Planting Foreman (planting trees for a period under eight weeks). Machine planting in the spring involves four to six weeks work. (Group 2 Unclassified) The evidence established that while the grievor has seniority as a seasonal employee, his last performance of spring work for the Ministry was in 1986 operating the A.T.V. In i987, he filed a grievance because Andy Koopman was asked %o perform that task. That grievance was settled by the parties in Mr. Millar's favour with compensation for lost wages and a guarantee of five months employment (Group 3 Unclassified) at some unspecified period between September 1, 1987 and March 31, 1988. 5 Ken Yaraskavitch is currently Acting District Manager of the Ministry's Chatham District. According to Mr. Yaraskavitch, in 1988 the grievor worked as foreman for "Norton", a private contractor, in the hand spraying operation. Mr. Yaraskavitch recalled that in 1989 the grievor performed spring Work for the same contractor as a crew member. In 1990, the grievor worked at his father's asparagus farm. In recent years, an increasing number of the Ministry's spring duties have been performed by private contractors. Spring hand spraying and hand tree planting has been contracted out since 1986. Machine planting of trees was contracted out beginning in 1988 and would have been in 1989 but for the refusal of the private contractor to sign the necessary documentation. Brian Flook was employed by the Ministry in 1989 for the machine planting of trees under a contract of less than eight week's duration (Group 2 Unclassified). Currently, the only tree planting duty retained by the Ministry is the A.T.V. spraying project. In support of its position, the Union relies upon the tenor of a Memorandum from Assistant Deputy Minister R. M. MonzOn dated December 24, 1985. That Memorandum (Exhibit 4) reads as follows: I would like to ensure that a Ministry-wide approach, which is fair and equitable, is applied in the identification or creation of seasonal positions. By means of this memorandum, I would like to clarify this approach, ensuring the treatment accorded seasonal employees is consistent and reasonable. 6 Seasonal positions should be identified in such a way as to provide the individual with the optimum benefits and working conditions possible. For example, if several short term seasonal positions (e.g. under 8 wks - 4 mths.) could be combined to create a longer seasonal job (i.e., 4 - 11 mths.) every reasonable effort should be taken to do so. This would enable the seasonal employee to participate in the public service pension plan and enjoy additional insurance coverage and benefits, not otherwise applicable to unclassified staff or short-term seasonals. Services which are similar and seasonally concurrent would be adaptable to this policy and combinations of jobs (e.g. Fire Crew Leader/Timber Technician/Forest Technician) is encouraged in such cases. Naturally there will be situations where job combinations are impossible or impractical. For example, situations involving different geographic locations or wide disparity in classifications would not lend themselves to this practice. I would also urge you to take a careful look at past recruitment practices with a view to identifying jobs in such a way as to not significantly alter these practices; as a large number of seasonal employees have come to rely on employment with this Ministry for their livelihood. The major thrust of these changes to the Collective Agreement is to secure for these employees rights to on-going employment and enhanced benefits. In the establishment of seasonal positions we clearly need to protect the Ministry's right to recruit employees and assign work but we should also be trying to live up to both the letter and the intent of the Collective Agreement. I urge you to discuss circumstances particular to your situation with your Regional/Main Office Personnel Officer or with staff of the Personnel Policy & Staff Relations Section. We will assist you in any way we can to ensure that both the ministry and the ministry's employees receive the fairest treatment possible. The Union contends that the grievor, having attained seniority status as a seasonal employee, has recall rights to spring work under Article 3.21.1 and that management cannot defeat that right by manipulating the job into small components. Mr. Ryder contends that 3.21.1 recall rights apply to any task performed by an employee even if the task is under eight week's duration. In. support, the Union referred to the following authorities: OPSEU .(G. Generv) and Ministry of Transportation 1468/85 (Fraser)~ and OPSEU [Munro and Boden) and Ministry of Natural Resources 677/88, 847/88 (Fraser). At the outset, the Employer contended that the 1990 grievance was inarbitrable under Article 27 of the collective agreement in the sense of being untimely. On the merits, the Employer argued that Article 3.21.1 does not provide recall rights to employment under eight weeks. In the alternative, Ms~ Pasieka contends that there were no job security rights for spring work in either year because the grievor did nothing to protect his rights in 1988. The Employer made references to the following Decisions: OPSEU~(Hatt et al/ and Ministry of Natural Resources) 1282/88 (Epstein); OPSEU (Randall Brousseau) and Ministry of Natural Resources) 2285/87 (Devlin); OPSEU (Union Grievance) and Ministry of Transportation 1623/87 (Samuels); and OPSEU {Orville D. Smith) and Ministry of Transportation) 2315/87 (Dissanayake). In our view, the Employer's preliminary objection has merit. We find that the 1990 grievance is inarbitrable under the provisions of Article 27 because it was not processed in a timely fashion. We accept the evidence of Mr. Yaraskavitch that he told . the grievor on March 29, 1990 that he would not be hired for spring work. The filing of a grievance on May 15, 1990 is well beyond the time limits contained in Articles 27.2.1, 27.2.2 and 27.3.1. Accordingly, under Article 27.13, a grievance that has not proceeded in accordance with the mandatory time limits is "deemed to have been withdrawn". In the instant matter, Chatham District operates an annual spring program which involves the planting and spraying of trees over a four to six week period. However, it would appear that the decision of Vice-Chairperson Epstein in Hall and Ministry of Natural Resources, supra, is dispositive of the issue before us. The Hall decision was concerned with seniority rights of seasonal employees and involved an interpretation of the definition of seasonal employee, now Article 3.18 of the collective agreement. In that case, two of the grievors, namely Hall and Martin, having completed their probationary period as seasonal employees, had been employed as Assistant Nursery Technicians (Group 3 Unclassified) paid as Resource Technician 1 from March 28, 1988 to August 12. 1988. They were re-employed as Group 2 Unclassified for the period October 3, 1988 to November 4, 1988. The grievors alleged that for the second period of employment they should have been employed as seasonal employees, i.e. Group 3 Unclassified employees pursuant to Article 3 of the collective agreement. 9 While the facts of the Hall case are easily distinguishable from those before us, the issue appears to be identical. Mr. Epstein defined that issue at p. 4 of the decision: ...whether two periods of employment under two different contracts of employment which are separated by an interval of time can be considered to be a season for the purposes of a Collective Agreement. In dismissing the grievance, Vice-Chair Epstein offered the following rationale at pp. 4-6: while we might be prepared to find that the grievors may well have performed the same job as Assistant Nursery Technician ... and while they appear to have been engaged in recurring positions, the problem is that the second period of employment was less than the eight consecutive weeks as is required by S. 3.17 of the Collective Agreement. (now Article 3.18) In essence, the grievors suggest that the second period of employment can be "tacked" to the first period in order to fit the grievors within the seniority rights granted by S. 3.19.1 of the Collective Agreement. (now Article 3.21.1) While the Board has some sympathy with this argument, with some regret, we find that to interpret S. 3.17 in such a fashion is to strain the language of the Collective Agreement beyond its reasonable interpretation. It was open to the Union and the employer to negotiate the wording of the Collective Agreement in a manner that was satisfactory for both. While we are charged with the responsibility of interpreting the Collective Agreement, we cannot and should not strain to create a new agreement for the parties. In our view, the phrase "period of employment" as used in S. 3.17 means one single unbroken period of time during which the employee was continually employed in the annual recurring full-time position. While we recognize that it may have 10 become the mutual intent of the parties for this grievance to maximize job security of seasonal employees (for example, see Appendix "A", which was Exhibit 5 to this Hearing) we simply cannot find that the parties to the Collective Agreement were successful in drafting S. 3.17 to accomplish that end. Therefore, in view of the fact that the second period of employment for these grievors did not meet the minimum requirements of eight consecutive weeks, the grievance must be dismissed. It is interesting to note that Appendix "A" to the Hall decision is the identical memorandum of the Assistant Deputy Minister referred to above (Exhibit 5). This panel finds the rationale in Hall to be persuasive. In the result, these grievances are dismissed. DATED at Brantford, Ontario, this 7th day of May, 1992. ..... ~ ...... .. ·.. .... ~.~' ......... R. L. VERITY, Q.C. - VICE CHAIRPERSON "I Dissent" (dissent autached) M. VORSTER - MEMBER DISSENT BY UNION ~OMINEE - MENNO VORSTER RE: Qntario Pt,hlic Service Errknloyees_ Uni ~d Ministry gf Resou~ Grievance of Jim Millar (GSB #775/89. 676/89. 1 ! 38/90) I must respectfully dissent from the majority in this matter on several grounds. The majority has found that Mr. Millar's 1990 grievance, is inarbitrable by virtue of the fact that the timelines,defined in Article 27 of the collective agreement were not met. The grievor testified he was not made aware that a spring tree planting .operation would be conducted and that other seasonal employees rather than he would be hired to do the work. Mr. Millar was working On his father's asparagus farm and away from the Ministry operation where he might have become aware that he was not offered work he may have been entitled to under Article 3.21,1. Once a Ior_~l union offidal made him aware of the situation, Mr. Millar filed a grievance. I question the allegation made by Mr. Yaraskavitch that he told the grievor in March 1990 that a spdng tree planting operation would be conducted without him. The grievor had just successfully filed a grievance on a similar situation in 1988 and as a result on a settlement, the Minist~,y paid the grievor a sum for lost wages and guaranteed him five months work. He had also filed grievances for the 1989 period 2 which are two of those before us. For Mr. Yaraskavitch to have made the plain statement to the gdevor as he claims, it would have amounted to what sounded to the grievor like a clear declaration of the Ministry's intent to violate the collective agreement. Surely Mr. Yuraskavitch would have anticipated that the grievor would immediately file another grievance had he made the statement, a situation i do not believe Mr. Yaraskavitch would have invited. If he had, however, the past actions of the grievor would lead one to believe that the grievor would have filed a grievance at that point. Furthermore, the Assistant Deputy Minister had, on December 24, 1985, issued a memorandum for general distribution which dearly outlined a fair hiring policy with due consideration of seniority for seasonal employees. Had Mr. Yaraskavitch told the grievor of his intent, he may well have been in violation of Ministry policy and directives, For those reasons, I prefer the testimony of Mr. Millar and believe he was not aware until May that spring planting was being done by seasonal workers junior to himself, i would have ruled that the grievance is arbitrable. On the merits of the issue, the majority has followed the collective ~gr~ee_-me.nt i.n. terpret~tio_n, applied by Vice-Chairperson Epstein in QP,~EU and the Ministry of Natural Resource,5. _Hall et ~J. GSB 1282/88. Relevant sections of the Epstein decision are quoted in this award. Vice-Chairperson Epstein based his findings on an interpretation of a seasonal employee to conclude that recall rights based on seniority are only required for periods of temporary employment of more than eight weeks. In the instant case, the grievance related to a work period of less than eight weeks. I believe an alternate interpretation would be more accurate. Article 3.18 of the collective agreement defines a seasonal employee as one who is appointed to full-time positions annually for a period exceeding eight consecutive weeks per year. Article 3.19 further provides that a seasonal employee requires two periods of employment exceeding eight weeks each in two consecutive years to complete his probationary period. Once the probationary requirements have been met, a seasonal employee is recalled in order of seniority according to Article 3.21.1. Articles 3.18 and 3.19 define who is eligible to be affected by the seniority rights bestowed by Article 3.21.1. Quite 'simply, Adicle 3.18 describes the requirements necessary for an employee to be regarded as "seasonal". Article 3.21.1 does not state that ail I;~riods of em.Dloyrnent must be of eight weeks in 4 ~ur~tion for seniority to apply. I submit that it is incorrect to ~ssume that work periods contemplated in Ar'tide 3.2t. 1 are somehow connected to those which are required to define an employee as seasonal in 3.18. Article 3.21 simply does not state that. if Mr. Millar has met the requirements to be defined as a seasonal employee and completed the probationary period, he assumes seniority rights for all job recalls under Article 3.21.1. In OPSEU and the Minis. try of Transportati~r~ G. Genery. (Fraser). #1468/85, Vice-Chairperson Fraser dealt with an issue of the accumulation of work hours necessary to complete the probationary period, it is relevant to the instant case when in his decision he writes as follows: "First, there is only one probationary period in the collective agreement for seasonal employees, found in Article 3.18 (now 3.19). It is limited to the 'same position in the same ministry', but once it is over, it is over, and seniority rights then accumulates 'within a ministry' by Article 3.19.1 (now 3.21 .I) for all hours worked, and it is common ground that it can accumulate in a variety of positions." The grievor requires at least two work sessions longer than eight weeks each in consecutive years to be defined as a permanent seasonal employee. Once that is done, it is done. Thereafter, recall rights in Article 3.21.1 cannot be read with an eight week time restriction of which no mention is made. 10 become the mutual intent of the parties for this grievance to maximize job security of seasonal employees (for example, see Appendix "A", which was Exhibit 5 to this Hearing) we simply cannot find that the parties to the Collective Agreement were successful in drafting S. 3.17 to accomplish that end. Therefore, in view of the fact that the second period of employment for these grievors did not meet the minimum requirements of eight consecutive weeks, the grievance must be dismissed. It is interesting to note that Appendix "A" to the Hall decision is the identical memorandum of the Assistant Deputy Minister referred to above (Exhibit 5). This panel finds the rationale in Hall to be persuasive. In the result, these grievances are dismissed. DATED at Brantford, Ontario, this ?th day of May, 1992. R. L. VERITY, Q.C. - VICE CHAIRPERSON "I Dissent" (dissent attached) M. VORSTER - MEMBER D. CLARK - MEMBER