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HomeMy WebLinkAbout1992-3204.Laronde.95-09-12 {-- ~",. ONTARIO EMPL OYES DE LA COURONNE CROWN EMPLOYEES DE 1. ONTARIO 1111 GRIEVANCE CpMMISSION DE V 't--) :'I} rY SETTLEMENT REGLEMENT ~ ~ LjI' BOA~D DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONIO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (4/61 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G 7Z8 FA CSIMILE /TELE COPIE (416) 326-1396 1lI~"""-"~"''''r --r"r" . __',_._ ~. "L:-" , ... .,.,.l.,;r.;..".');t::..'_~- GSB # 3204/92 .RECEI\lED OPSEU # 93C193 )' SEP 1 2 19~5 IN THE MATTER OF AN AR~ITRATION P'J8UC tJEPVW'J= '--' ~ Under , , . I '-'_ APPEAL BOAF~OS ' TIIl3' GROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARP \ BETWEEN OPSEU (Laronde), Grievor ~ and -, The Crown in Right of Ontario (Mi'nistry of Transportation) Employer BEFORE o. Gray Vice-Chairperson FOR THE J Monger GRIEVOR __ Couns~l -' Gpw1ing" Strathy & Henderson Barristers & Solicitors , - .- Jarvis FOR THE D EMPLOYER Counsel Filion, Wakely & T~orup - Barristers & Solicitors , ( HEARING April 26, 1995 ( ~ " -- ! I ".-..", ;.! "- Decision \ The grIevor was a wmter seasonal unclassIfied employee of the MmIstry of Transport in. thE; Ottawa Dlstnct during the wmters of 1989-90, 1990-91 and f 1991-92 He was not recalled to work m the wmterof 1992-93 In November 1992 he filed the grIevance now before me, allegmg that "1 have not been offered em- ployment in_my form~rcposltlon OIl the basis of semorlty" The partIes have asked that 1 deal wIth a prehmip.ary and potentially dISposItIve questIOn about the scope of tills gnevance.- That question is whether the propriety of the relative timing dfthe recalls of the grIevor and another employee m 1991 for the 1991-92 wmter season is properly m issue in thIS grievance. I ArtIcle 3.21 1 of the partIes' collective agreement provides that 3:21 1 Seaspnal employees who have completed their probationary' period sh~ be offered eIllployment in their former ,positions In the following season on ) the basIs of seniority The employer ha~ acknowledged throughout that the grIevor had completed hIS probationary period prior to the 1992-93 winter season. Its posItIOn throughout has been that the grIevor's "former pOSItiOn" was "snowplow helper," and that as a result of a change in the way snow plowmg operations were pElrformed In the 1992-93 winters,~ason -m the Ottawa dIstrict there was no "snowplow helper" position m that dIstrict that winter The umon's pOSItion on behalf of the grievor was and IS that the grIevor should have been recalled to the "snow plow opera- tor" posItIOn whIch was performed m the wmter. season 1992-93 by another sea- sonal employee, Ger~ld EllIs, argumg that the dutIes performed by Mr EllIS fall wlthm the grIevor's "prevIOUS posItIOn" for purposes of ArtIcle 3.21.1 The Im- plICIt and ~ecessary premIse of that posItion w~s that the gnevor's semorIty ex- ceeded that of Mr Elhs at the time Mr EllIs was recalled m 199-2, a matter whIch the umon would have to establIsh in order to succeed m thIS grIevance I The grievance was not resolved, and was referred to arbItratIOn. I I ~ ---- ~(-~ - .., 2 Durmg the three seasons pnor to the 1992 93 season, some seasonal em ployees were hIred or recalled earber than others and, consequently, acqUlred , ' dIfferent amounts of semonty B,oth the .gnevor and Mr Elbs were firl:}t em- ployed m the 1989~9Q season. The gnevor was hIred before Mr EllIs He worked 21 weeks that season, whIle Mr EllIs worked only 13 weeks In the 1990-91 sea- son, both the gnevor andMr EllIs worked 22 weeks In the 1991-92 season, however, Mr EllIs was recalled to the Pembroke patrol as a "snow plow operator" several weeks 'pnor to the gnevor's recall to that patrol as a ~snow plow helper" Mr EllIs worked 22 weeks that season, whIle the grIevor only worked 13 weeks I On the face of these facts, to whIch the partIes finally agreed only shortly before the hearmg m thIs matter, Mr Ellis had slIghtly more semorIty than the gnevor at the time he was recaned in 1992 Accordingly, It would appear to have been ) proper for the employer to have recalled Mr EllIS ahead of the gnevor even If the umon IS right that the posItIOn m questIOn was as much the grIevor's "prIOr POSI- tion" as'Mr Eflis's. Durmg a pre-hearmg meetmg IP; January 1994,. the ul1ibn adVised the employer for the first time that It mIght be assertmg that the employer's havmg recalled Mr Ellis earher than the gnevor m the 1991-92 season had been Im- proper, with the Implication that the grievor should therefore be treated as hav- mg mqre semonty than Mr EllIS for purposes of this grIevance The employer responded that thIs amounted to a change m posItion and assertIon of a gnev- _ i ance whIch waS untimely Having smce be(::m satIsfied that Mr EllIS'S actual semorIty exceeds tpe gnevor's, the union wIshes to pursue the allegation that the employer improperly recalled Mr EllIS before the grlevor m 1991 The Issue now' before me IS whether It IS open to the union to do that. The partIes' 1989-1991 and 1992-93 collective agreements both provIded I m Article 27 that 27 I It is the intent of this Agreement to adjust as qUIckly as possible any complaints or differences between the partIes arising from the interp:r:etation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter IS arbitrable. 27,2.i An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within, twenty (20) days of first becoming aware of the complaint or difference. 27 2,2 If any complaint or difference is not satisfactorily settled by the superVIsor withm seven (7) days of the discussion, It may be processed within an addJ.tlOnal ten (10) days in the following manner- I -., I I I ----- 3 .-."..-~ ~ }~, After settmg out a procedure for the filing, dIscussIOn and referral to arbItratIOn -- of a wntten gnevance, theartlcle went on to say that '4,713 Where a grIevancc IS not processcd wlthm the time allowed or has not been-processed by the cmployec or the Union within the'tIme prescrIbed it shall be deemed to have been withdrawn. It IS common ground that the gnevor and Mr Elhs both worked out of the same patrol dm;mg the 1989-90, 1990-91 and 1991-92 seasons Umon counsel acknowledged that at~all material times the grIevor was aware of the collective agr~emeJ;lt and ItS prOVISIOn for semonty and recall rIghts for seasonal workers He saId that the grIevor knew he was "ahead" of Mr Elhs m semorIty at the end of.,the second of those seasons He acknowledged that the grIevor was aware, I' when he returned to work in the thIrd season, that Mr EllIs had been recalled . .. . earher than he had that season. The grIevor did not grIeve tpen, counsel saId, bec~use he was "happy to have employment." Counsel saId that at the end of that tlurd season the grievor believ.ed (incorrectly, as it turns out) that he was still ahead of Ellis in seniority There is no suggestion that anythmg the em- ployer did or said mduced that.behef. The employer argued that the umoncannot raIse the tImmg of the grIevor's 1991 recall in this grIevance for two reasons One IS that the orIgmal focus of the grIevance was solely on the propriety of the employer's actIOn m , 1992, and that the later introductIOn of this Issue about recalls m 1991 amounts to a change m tl).e substance of this grIevance, making it a grIevance which is not properly before me. The other reason IS that even if the issue had been part of thIS grIevanqe from the time it was filed, It was untimely even then. i The union argues that the focus of the grievance has not'changed. It stIll focuses on whether the grIevor should have been recalled ahead of Mr Elhs m 1992 It still rehes on the same artIcle of the collectIve agreement. All that has changed is that there is an additIOnal legal argument. As for the Issue of timelI- ness, the \lmon argues that that must be resolved by consldermg the matter of r:emedy It says that the grIevor would be out of tIme "If he were seekmg compen- satIOn m respect of the 1991 92 season, but because he IS not seelung that rem- , edy there IS no Issue of tImehness ~~""" ~"' ~ ) 4 Decision "- I find that the mtroductIOn IOto thIs gl'1evance of a questIOn of the propn- ety of the recalls 10 1991 was time barred even when the grIev.ance was filed Ac- cordmgly, It IS unnecessary to consIder whether the way the~question arose here constItuted a change In the nature of the grievance ImtIally filed, or to reVIew the arbItral JUrisprudence cIted to me on that Issue. i The 1OtroductIOn of the questIon of the propriety of the recalls m 1991 10- volves assert10g a compla1Ot or dIfference of the sort contemplated by ArtIcle 27 of the partIes' collective agreement. It IS not Just a matter of mtroducmg allega- tIOns of fact about a period prIOr to the filing of the grievance". Those allegatIOns are mtroduced in support of the proposition that the grievor shouJd have be treated as hav10g had more semority than Mr Ellis 10 November 1992, even thoug? he had actually worked fewer weeks than Mr Elhs as of that time That propositIOn rests on the argument that Mr Ellis only came to be more semOr ( than the grievor because the employer improperly recalled hIm earlier m 1991, 10 alleged vIolation of the collective agreement. Aslqng that the grlevor be treated as hav10g had more Sem0rIty than Ellis as at the beg1On1Og of the 1992- 93 season amounts? in substance, to seek10g a remedy for a breach of the collec- tIve agreement whIch is alleged to have occurred m late 1991 \ The grievor knew m late 1991 of the basIs for a complamt about hIS recall hav10g been subsequent to that of Mr Ellis. At thatpo1Ot It was a complamt he could only pursue If he dId so WIthin the time specified by Article 27 He chose not to purs'ue a complamt about that alleged breach. He thus gave up the oppor- tumty to obtam any remedy he might have obtained had he pursued the com- pla10t and succeeded Adjustment of hIs semorIty relative to Mr EllIS was one such remedy The mere fact that that remedy came to appear more valuable to the grievor several months later dId not reVIve the opportunity to claim It on the basis of the same past events. It IS not suggested that any other, subsequent, events mdependently gave rise to a claIm to that remedy I By November 1992, when the grIevor filed the grievance now before me, It was not open to hIm to assert that he should have been treated as havmg ac- qUIred more semorIty durmg the 1991-92 season than he had actually acqUired (nor that Mr EllIS should have been treated as havmg acquIred less semorIty than he had acquIred) by reason of an alleged breach by the employer of the col- I ~ 5 "' /:f-~. -t-:c -t~ - lectIve agreement m late 1991 Accordmgly, even on the ~mon's VieW of the ~(former posltlOn" Issue; the employer dId not breach the collective agreement In 1992 by vecallmg Mr EllIS ahead of. the grIevor There 'bemg no other basIs on WhICh the umon claIms that the ghevor's rIghts under ArtIcle 3 21 1 were VIO- I \ lated m 1992, thIS grIev.ance IS dIsmIssed ( ; Dated thIS 12th day of September, 1995 ') /' l /; ~l /./' ( "-.'7 ( r~;f .-' - .; .~~../ ,/ _.. .I .--.-' .,-;/ _, /' ' ---- Owen V Gray, VIce-ChaIr - ~ I ./ , ", > ~ )