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HomeMy WebLinkAbout1993-1156.Stegner.95-09-08 - "''[ ~ - . --- >~ "t {~\ .~ EMPLOYES DE LA COURONNE , ONTARIO CROWN EMPLOYEES DE L:ONTARIO ' 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGlEMENT S 0.,\ BOARD DES GRIEFS ~~c 186 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M5G lZ8 1 TELEPHONE/TELEPHONE -(476) 326-7388 -.,-o~~~ RUfiOUNO~~pUE.~!~.!:!!3!:~U 2100 TORONTO (ONTARlOI M5G IZ8 FACSIMILE/TELECOPIE (416) 326-/396 fi'~ ~~~I #.p~ ~ ~ ~ {if \;-Wt'.l7\~'~ j GSB # 1156/93 'ii,' q,,:..... ttt ~~, "'" Q '1, [" ~ I l b' ~;h . '!!f y,/ ~?,.I<n ~~ f. OPSEU # 93E467 ~ .., ",. ~.=:,t> ;:t" ~~:~ ~'J' ' SEP 1 11995 IN TffE HATTER OF AN ARBITRATION P ~ .' C... ("""", ~ . ~ .,.- Under ...1:'" '- '.,1 v t:JI'./J Lt: APFiEAL BOt;(_1q':'~HEI CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - ,.,.._~,~.,. . ) Before '\ THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (stegner) Grievor - - and - - The Crown in Right of Ontario (Ministry of Transportation) Employer ~ BEFORE L Mikus Vice-Chairperson G. Majesky Member M. O'Toole Member ( \ FOR THE N. Rolan!i GRIEVOR- Barri?ters & Soiicitors - FOR THE L Marvy EMPLOYER Counsel \ Management Board Secretariat HEARING November 21, 1994 '\ I , \ The grievor, Mr Ben Stegner, filed a grievance dated May 3, 1993, alleging that the ~ Emplqyer l1ad violat~d ,Article ~,!of ~e collective agreement. The grievance states as ~L "'i""; t 2. -:to... '.: follows ... -t~ t::i' 1..;; Seasonal employees ~~o have completed probationary period shall be offered employment in their former positions;in the following season on the pasis o( s.eniority In this case summer :students are offered Employment,Agreements therefore eliIp,inating my employment/seniority status. By way of redress tile grievor was':seeking regular wages, overtime wage, holiday pay and , ...u t rr~ ; .; .... overtime ,holiday payment, paymenf'of Union Dues, income tax~ UIC, CPP, attendance creditsartd no loss',of seniority,-retroactive to date of thagrjeyance. -. , In what th..e Union argued was a related grlevance dated JUly 28, 1994, the grievor claimed that the Employer had again violated article 3 of the collective agreement by failing to accept his application for a posting in April of 1995 for the positi'on of Tech 1 Survey He \ claims that he would have been allowed to bid on had he been properly classified as a s~asonal employee. He asks for a re-pQsting; of the position and l~~t_wages and benefi~ __ to the, clo~ing ~ate of ~~ posting~ \. -The relevant provisions of the collective agreement read as follows,:' 3.17 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annual recurring full-time position in the unclassified service in the rninistIy For purposes of this definition full-time means a minimum of thirty-six anc;l oJ;le-quarteq36 1/4) or forty (40) hours per week, as applicable. 3.18 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 sarne position in the sarne ministry I " . 3.1 ~.l A seasonal employee's se~rity within a ministry will accumulate upon completion of his probationarY period and shall include: " 1 I ) \ - 2 ~ (a) all hours worked as a seasonal employee at the straight-time rate; j (b) pertOcts of authorized paid leave in accordance with Section 3.31, Attendance Credits and sick Leave. 3.19.2 A seasonal employee will lose his seniority when: , .. ~ (a) he voluntarily, tetmJna.tes his~employment"l (b) he is'dismissed (unlesS such ~. is reversed throughJhe, grievance procedure, (c) he is absent without leave in excess often (10) consecutive working days, (d)- h~ is unavailable for or declines an offer fo~ Il!t-employm~~tas prQVided in \ Section 3.20 Gob Security), or (e) he ceases to be in the employ of the miIlistn' for a period of more than ;l'tWe~ months. ,~ , . ~ "1' _, \ 3.20.1 Seas'onSl employees who have completed tlieJr,prpbationary period shall be offered employment in their fonner positions in the following season on the basis of seniority The grie,vor had be~n hired tq work c;m .!he roaQ. crew C!S a Tech 1, surveyor/weigher . .... . oJ ~ ... \ .under the following....contracb? :'",.;0 - April 17, ~~90 to November 9, 1990 - Tech 1 Survey/Weig}ter , April 15, 1991 to December 20, 1991 - WeigherlTech l/Su:rvey ~ ...., April 20, 1992 to December 4, 1992 - Weigher/Tech 1 Su:rvey ~ July 26, 1994 to December 5, 1994 - Checker ! It was the position of the Union that, according to thegrlevor's work hiStory, he should have been classified as a Se8.s0nal employee pursuant to section 3.17 If he had been, he would have been entitled to limited job securi,ty anc!,adcijtionalbenefits which do not accmeto unclassified staff, including the right to compete - in job pc;>stings. \ - ~ - ~ At the commencement of the hearing Mr. Marvy, counsel for the Employer, raised a preliminary objection ) J to the jurisdiction of the Board to hrar these grieyances. It was piS pOsition that the issues raised in the ( , I grievance of May 3, 1993, with respect to the recall rights of seasoiull employees had already been decided by Professor Samuels In an earlier decision. That dEicisiOJl is DindJn~ on the grievor, the Union and the - Employer. The Employer took 'the position that the issue was RIll to"~ta \ .... I 3 ~ . I/'}" :.+- _1 " The case he was referring to was a poliqy grievance between OPSBU and th8 MlriIstIy of'l'nmspQrtatkm -1 _~'. }-, t.e _ t:'t, (May 33. l~,GSB #1,633-87 (Her~inl,lft~rref~~~d!o as the .Sam1:lels,bo8fd.)I~. that case the Union was seeking a declaration that employees classified as .weigher", "checker'i and iTechnician 1 survey" be designated as,seasonal employees. The Sarnuel's'boarcl heard evidence concerning additional staff who . . ' . ..; ;'" If.;\."'" ,- .; ~ . -were ~ngl:iged under contragt to'ass~f{the Employ.!3r with resp~ct tp, rpad;. bridge and construction projects .....{ . and who were;h1ed-intoth~ Classuk;ations at issue and deaignated" as ~c~ified employees. At issue , '"..... . '-,,:; '" ., 1, ," . ,~ . in that grievanqe~as articlei~,17 .0Hh~ coll~tive agreeme~twhich is W~ntical to t~e one before this board. . ." ,. ". ~.....: I . ~ ~ f-:-l.t ,t" The que~ti~n for the Samue~.boNd was wheUter the weighers, check!3rs and technician 1\ survey were It "- ::- !lPpointe4..to ann,1}aLrec~~ -full ~~ positions. ~.,~onslderingthaf questiOn he stated the following, at 'page .~; j" The Ministry engages outside contractors to do the construction projects. The Contractors . - - . -. ! . ~ ~ ..... .' ~ . choose their sources of aggregate supply ,A.weigher works at the~vel.pit from which,the ,contractor gets hiS' aggregate and is _'. .' : '',It' . .. -I' responsible forweighlng and recording the amount of aggregate taken. A checker works - '"~~.... ~ " . ... - : ' ;. - . in the constru9tion~te and.~ resPonsil?le for me~g t~e, amoUnt o~ag~egate dwnped at tA~ site., In this way the ~try is able ~o co~ the ~ount o(aggregate USed in the . < . I, .".;: . construction project " , "i.. '. c'" -. A technician 1, survey. assists a suivey crew in holding.rodshpounding stakes and doing . .....,:. to . . other s~ tasks. l' _ - ~ It has been th.~.Ministry's practise to engage people w~o live near the construction projects to act as weighers, t4::hniciail 1 surVey Each employee ~ hired purs~t to a contract which relates to a specific cOIlStruction project. Over the course of a year any particular employee may work tinder one otmore contracts, depending'on the construction going on in his locality And the employee may serve as weigher, checker or technician I SUIVey, depending o~ tl:1e',Ministry~ needs on thaJ ,proj~~t. SQme, of,theseemployees have been hired year after year for many years. Their periods of employment willl:1,e long or short, _ continuous or diScontinuous, depending on the work available. At the end of one year, th~re is' no dertmrl~ regiudinti then~xi tear. 'It'all depends ori the construction projects which are needed and funded. Sometimes a project will extend over seVeral years in which case an employee may be,~ngaged fotthis period' on the project, jf the work continues near the employee's place of residence. In these circumstances can it be said that one of these emplOYees is appointed to an "annual recurring full-time pqsition"? ., " - This expression appears to have been considered only once before. In ~ 6OaI88 (Slone); the Board di9alt witMhe case of a park warden whornovedfroin park to park from year to year The Board decided that, wherever the griever worked, he was in the same -! I ( 4 positio~, that of ~ park warden. Therefore he was a seasonal employee. It is significant that, in Pum!ss, the griever's job functions and period of employment where '\ pretty much the same year after year, imd'lt waS' very likely that fuere' would be park w~den wprk yelp' after year. ,~ ; In our view, the essential message of the words "annual recuning full time position" is that there is Ii foreseeableregu1arity arid 'repetitiVeness involved in the employee's appointments. The work is full-time. It d~ not go on all year, but an identifiable position J reCurs each y1iai This notion of r9guIarltyfs ecliOed in the job secUrity provision for seasonal employees. Article 30;20.1 provides that "Seasonal employees who have -:. completed their probationary'per.i.odshall be offered employinent in their former positions in the following season on the basis of seniority" It is contemplated that the same position will be there the following season. The seasonal employee'is not shrtplyrehired year after year, but ret~ms to his or her "former position" The work patterns of weighers, checkers and technicians 1 survey do not have the hebessary repetitiveness and regulaiityto fan into'the definition 'of "seaSonal employees" -' established in AJ::ticle 3.17 These employees are engaged for particular projects which -happen to be undertaken cldse'to their place of residence. The projects ate done all over the map. There is never any certainty that there will be work for a particular employee in any season, or, if there is work, how much there will be. An employee may work one contract asa weigher, another has a checker and'a third as' a teChnician I survey - Within anyoneloclility, there may be several projects going on of differing duration, from a feW wee~ to Several months. If a' weigher was consJdered to be a seasonal employee, having a seniority claim to his "fo~er positiOn"; which project woUld be considered to the erilploy~'s "rormer pOsition"? The longest project? The project which was approved and funded first? The project dosest to the employee's place of residence? In our view, itls simply not possible to Jdentify any particular work or position as an "annually'recumng full-fune position' with reSpect- to any particular weigher, checker or technician I survey For these reasons we dismiss the'(Jrievance. Employer_ counsel also referred to the case of LeClIJir and Ministry' of Community and Social Services (1991) GSB 2962190 and 2963190 (Dissanayake). In that case the grievor had filed several -grievances in response to various disciplines. Those grievances were ,...."'1. ultimately, settled by removing all, m~ntion, of the discip~in~s frQrn the grievor's file. One ~ of those grievances,'was, the subject ofa settlement which ultimat~ly becam~ a consent . order of the Board. The grievor subsequently filed a ~evance alleging harassment and attempted to revive all of those previously ~ettled grievances as examples of harassment. The employer took,the position that U1e grievances had been, settled and could not be the 5 subject matter of another grievance. The Board decided, on the facts -before it,. that it was , not-res Judicata but said, 'on page ten, the following, It is trite law that a. grieVOJ is not'entitled torelitigate a prior grievance which has been either withdrawn, abandoned or settled, or deteimined by a 'board of arbitration. That principle was enshrined in the award in Re CUy of Sudhmy (1965), 15 LAC. 403 (Reville) ~ at pp.403-4, where the learned arbitrator stated: , -, - The authorities are legion thar a.board of arbitration haS no jurisdiction to J consider qr, alterhatwetYi that the grtevor and his or her union ~ebaned and estopped from processing a grievance which ,js identical to a former I grievance fiiedby the'grievor and either Withdrawn, abandoned or settled or detennined by a board of arbitration. Some of these cases proceed on the baSis of estoppel. and otheIS on 'the 'pnndipleQn res judicata. but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain lIuclt a second grievance... There is also substantlal authority to support the proposition " that ~ arbitratio~ ~d has no ,~urisd.iPtion to _de!ennine a grtevance whic;;h, tholigl1:'not identical in wording and fonn: to the fonner grievance -.lOdged by ,the Same gr1evor is id.entical in ~uhstance... " ~...... ~.... ~... ) The EmplOyer took thy position that the instant case is a c1ass~c exalItple of res judicata. \ In the Samuels ,case the- Union sought a declaration for ,its members lha,t the Technician 1 survey, 'weigher and checker I were seasonal employees. That'is exactly what, tl!is grievor is attempting to achieve before t}$, Board. This grievance has the same objectjve, that is to 'giVe recall-rights to these classifications., - A Counsel fot-the Employer referred the Board to the case of Klassen and Ministry of Education (1993), GSB T0047-88 (Stai1ley); In that case the grievor ,alleged the employer had violated the collectIVe agreement by refusmg to accommodate 'her disability The Employer took the position that the issue had been dealt with by a previous board of arbitration and that the doctrines of res judicata and issue estoppel applied. The board in the ]{bissen case ,quoted' from the text Evidence in Procedure in Canadian Labour ~ l, 6 Arbitration (Professor Gorsky), at page 234 " "If at first you don't succeed, try try again" may be a worthy maximum, but it does not apply in law It is a rule of conitluYn law'that a case s~ould only be tried once. This rules app~es to arbitrations as well as to court cases. The rule is based on the easily defensible idea that there should be an ~nd to litigation and that it would be unfair to impqse on a party the .burden of defending himse)f two,.to tweJ:!.ty ti!Jles over. - ,.(" - There are several ways in which,rep~a,teQ.,hearin~on the same matter are prevented. The first is called "cause of action (res judicata) estoppel" An issue before the parties may contain several sub-issues. In a ~s~. qea~g with a violfltionof a rule there a~e several sub-' issues: Was the rule posted'? Was- it reasonable?r Did it apply to the grievor? If the larger , , issue has beendecided"eithel'_by a ,?ol,\rdor by an unconditiort~lsettlement, withdrawal, or \ abandonmentbeforehand, the lesseJ <;an not be made the subj~~,o_f another arbitration. \ The boarCl in'Klassen: also adopted a'statement from Henderson (1843), a Har$ 100, I.; '-t. whe:rein it was saia. , ~ , \ :"'; ._- The plea ofms ~ta,applles, e):Cc!3pt in,~~,c~~, not 9rilr to the point upon which the Court was ac~~y ,requfred by the. ,parties, ~6 fo~ an opinion and, pronounce a judgement, but toeVerv POint which PfoneIlv helonaed to the sUbiect of liJ:iaation. and which the parties. exercisina reasonable diliaence. miaht have brouaht forward at the time. " (their emphasis) -)0', - The board concluded that the effect of th~ previous jurisprudence w~ to include in the I -doctrine of res judicata the factual foundation of a cause pf action. The factual issues in ~ I the grievance before it had already been adjudicated by the Samue1s..board which found that the employer 'had taken all reasonable' steps' to accommodate- the gJ;jevor The Klassen board found that the employer had already defended itself against the charge that it had violated the grievor's rights. The Samuels board's fipdiItgs were the factual underpfuning of the_complaint befor~hthe!Klassen,board. It. dismissed the grievance on the basis that it 'was res judicata. " "' With respect to the second grievance, the -Employ~r took ,the -positiqn that, if it is correct and the grievor is not a seasonal employee, he must be, an un~lassifi~d employee. If he I 0 7 ) ," " , ,t .k,""" . is an unclassified employee, he has no bidding rights 'to a posted position and therefore 1 i., this Board has no jurisdiction to hear that grievance. Counsel referred the 'Board to the case of Laframboise and Ministry of Natural Resources (1990) GSB 1287/89 (T. WJlson). t ..... I In that case a seasonal employee grieved when he was not appointed to a contract as - The Employer raised, as a prelimihary: matter, a Road Maintenance Crew Leader. I I challenge to the 'board's jurisdiction, arguing that the {appointment to non-seasonal , - \ ,i contracts was not grievable under the collective agreement. It set out the relevant sections of the Public Servi~ Act, as.o. 1990, c. 418, which ~ead as follows. 8(1) A minister or any publiq servant who is designated in writing for the pUrpose by him may appoint for a period of not ,mote than one year on the first appointment and for any Period on any subsequi;nt appointment a'person to 'a- Position in the unclassified service in any' nUnJstry over which he presides. (2) Any appointment made by a designee under subsection (1) shall be deemed to have ~en'made by his Min$erRS,O. 1990, c. 418, ~8. 9.~ A person who is appointed to a position in the public service for a specified period . : . ~ , " . I. ceases to be a public serVant at the expiry of that period R.S.O. 1980,c.418 8.9 The Board dismissed that grievance on 'the grounds that the grievor had no rights under the collective agreement to grieve the deciSion of the employer not. to award him a ~ contract to an unclassified position. It was the position of the Employer that the grievor --' in the instant case ceased to be- a public serVant in November, 'of 1992. He was not '\ recalled to work in 1993artd therefore lie cannot claim to be aseasonal.employee. '- Mr Nelson Roland, counsel for the Union, suggested that the jurisprudence is irreconcilable. He suggested that there are actually two lines qf GSB authority with respect to this issue. The S~uels and Slone boards carne to different conclusions about what is required to satisfy the definition of seasonal employees in the collective \ ! - -- ( to \ ( 8 agreement. Because there is an irreconcilable difference, the doctrine of I8S judicata does not apply In effect, Mr. Roland argued that it was up to this Board to break the tie - 1 \ He took the position that thE;! Samuel's board dealt with a different set of circumstances. . ~~ - , , - Altl:1ough it did review the nature of the work, of these classifications, this board does not know what evidence it based that review on. Mr. Roland suggested that this Board should " - look _beyond that evidence to the individual projects to detennine whether there was ~ -, predictability to future wQrk anc;l a reasonable expectation that the work would continue. ,- If tl}e Union were allowed to proceed, it would adduce evidence that the grievor~ given the n~ture of fr!e work involved, was recalled,to work near his residence. It would also show that the planning involved in construction and repair of road work is recurring This ( Board should hear the inaividuaf facts -regarding the type and'predictability of work in the area. Once the Union has shown that th~ work eXists on a recurring basis, it will have satisfied the onus of proving that_ 't.llE! grievor was a seasonal employee. A board of arbitration should be parqcularly c~eful of decisions that .purport to establish an individual's rights bas~d onge~er~ed finc:Ungs of fact. In this case, Mr. .Nelson argued that it is inappropriate for, a '};>oard c;jf arbi~ation to prefer general evidence of a job classification over the individual, evidence of,a grievQr who actually does the work The appropriate approach, argued Mr. Nelson, would be to decide whether the facts of this individual case of fit within th~, definitic;m of the collective agreement. .' ;, He suggested that in the ~s case (supra), it is clear that a position's characteristics \ I ~- .. I I I 'p" Oi. 9 / can vary and still be considered seasonal. The grievor in that caSe never worked at the I - same park. Every year he was assigned to a different park. When dealing with road , construction, the employees go to where the roads are being bUilt and that could be outside of the area where one worked the previous year The fact that the grievor was re-hired to different areas is not dispositive of the issue. " -..<- ,... With respect to the second grievanc~, Mr. Roland argued that the grievor was deprived of the opportunity to be considered for a job posting into a classified position because of ) the refusal of the Employer to acknowledge his seasonal employee status in the previous ) grievance. In that way the two grievances are linked. ~ ~ With respect to the issue of res judicata, ~. Roland noted that the LeClair (supra) case r involved an issue of whether grievances, that had been settled could be relitigated under - 'a new grievance. Ip the instant case, argued Mr. Roland, there are two individual I grievances. It is not an matter of relitigatingan issue, but rather having eaqh detennined on its own meritS. The LeClair case does not deal with the is~ue of the distinction between an individual and policy grievance. That, he suggested, was the distinction between the Klassen case and this one. In the Klassen case the grievor had been involved in a previous arbitration before a Samuel's board and, during the arbitration hearings that Board thoroughly investigated the facts giving rise to the grievance The Union was attempting to argue those very same facts before another board of arbitration - J ~ involving the same parties, the same fact situation and the same allegations. ( '~ 10 The facts of this case have never been litigated. The Union med a policy grievance with "- respect to the classifications generally, but the individual facts of this case have never , been litigated. The parties in this case are the grievor and the Employer and the Union. ;. " - -.{' ....~~ In reply Mr Marvy suggested that the Furniss and Samuels decisions are not irreconcilable but, in fact,stand for the same proposition. On the facts before them one board found that an employee was a seasonal employee, the other did not. There is no inconsistency in those decisions. 'Finally, with respect to the Union's argument that there ( ~ , is a distinction to be made between a policy grievance and an individual grievance, the Employer took the position that the grievance before the Samuels board was brought forth \ t as a policy grievance for good reasons. The decision effected everyone in the classificatipn and it was the intention of the Union and the Employer that they would avoid ......,. . ~' multiplicity of hearings by deciding the issue for the all employees in the classifications. - The fact that an individual in a classificatioI:l is not satisfied does not alter the fact that the - Samuels decision applies to all employees within the classification. ,- , DECISION Having considered the evidence and the submissions of the parties, we are of the view this grievance must be dismissed. We are being asked to decide whether the grievor, ~.. who was hired as a weigher, checker and tech 1 survey, should have been classified as ~ a seasonal worker It seems to US that the Samuels ,board in OSB #16323/87 has decided '.;'; ! 6. 11 .'1 ~ that very issue. ,- , .~ 1 The Union has argued that the individual facts of this grievance ought to be heard and that \ ,1 we should not rely on the generalised findings of fact in the Samuels' decision. The grievance before the Samuels board was framed as a policy or Union grievance, the subject matter being of general interest and intended to apply to all bargaining unit - members who come within its scope. Policy grievances do not generally depend on the - actions of an individual employee but rather on the actions of a sufficient number of employees in an identified group to justify a common result. Usually policy grievances I are filed in an attempt to avoid multiplicity of hearings on the same facts. The Union was seeking, from the Sc;unuel's board a decision on these classifications that would avoid the necessity of filing individual grievances based on the same fact situation. In the Samuels case, the Union was seeking a decision respecting the employment status of, checkers, wei~hers and tech 1 surveys. That decision was intended to apply to all J< - employees in those positions. Presumably, since the Samuels>dec~ion, the parties have - ~ conducted themselves accordingly The instant case involves the same classifications, the same parties and the same issues. We reject Mr. Roland's argument that the grievor is a party to this grievance. i The parties are the Union-and the Ministry of Transportation. There are valid policy reasons for one board of arbitration to follow another board of arbitrations decision in a. similar dispute between the same parties arising out of an -- ./ ! ~ ."" I 12 interpretation of the same collective agreement. For those reasons we agree with the Employer that the doctrine of res Judicata applies and the grievance is dismissed. " , The second grievance concerning the griever's rights to compete in a job posting is - .J dismissed as well. Since we have found that the grievor is not a seasonal employee, he - ~ "- is therefore an unclassified employee. Consistent with the decision in the Laframboise ( - ~ case (supra), he has no right to grieve the decision of the Employer not to award him another contract position. I.. ,.. "':""'. For all of the above reaS,ons, the grievances are dismissed. - - . y { I " f.'" , Signed this 8th day of September, 1995. J K~~ " I DISSENT" 117 ;I o7~ (Dissent without a written reason) Loretta. MikUs Mr G. Majesky Mr M. O'Toole Vice-Chair Union Member Employer Member - - - '-- , .