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HomeMy WebLinkAboutKhera 92-11-04EM PA ' Nov 1 91992 ^� OfFI(E OF AR0,111 ION 0 IN THE MATTER OF AN ARBITRATION M between THE ART GALLERY OF ONTARIO (hereinafter referred to as the Employer) and THE ONTARIO PUBLIC SERVICE UNION, LOCAL 535 (hereinafter referred to as the Union) Grievance of Elizabeth Khera Sole Arbitrator Appearances: For the Employer: For the Union: Hearing: Toronto, Ontario October 30, 1992. G. J. Brandt Douglas MacLeod, Counsel and others Michael Mazzuca, Counsel and others k1k 2 INTERIM AWARD The grievor, Elizabeth Khera, claims that she has been improperly denied a posted vacancy for the position of Education Officer. The posted position was awarded to Mr. John McCall. It may be noted for the record that Mr. McCall was informed of these proceedings and of their possible impact on his position and that he did not attend at the first day of hearing on October 30, 1992. It is submitted by counsel for the employer that the grievance is inarbitrable in that the grievor is not an employee who is subject to the collective agreement under which the grievance is filed. For the purposes of this issue the parties agreed to proceed on the basis of certain agreed facts which may be summarized as follows. The Ontario Labour Relations Board has certified the union to represent both full and part time employees at the Art Gallery of Ontario. There is one certificate for full time employees and another for part time employees. There is a full time collective agreement and a part time collective agreement between the Art Gallery and the union. The part time agreement is appended to the full time collective agreement. The grievor works as a regular part time education officer. On July 24, 1991 a job vacancy for a full time education officer, M a position included in the full time bargaining unit, was posted in the Education Department. On January 15, 1992 the grievor applied for the posted vacancy and was interviewed on January 22, 1992. On or before January 29, 1992 the Art Gallery advised the grievor that Mr. John McCall had been offered the position. Immediately before his appointment to the full time bargaining unit, Mr. McCall had been employed by the Gallery in another non-OPSEU bargaining unit position. On March 12, 1992 the grievance was filed alleging a violation of Article 16 of the full time collective agreement. In particular the grievor stated that she should have been offered the full time education officer position and requested "to be instated in to the position of education officer C4-4 with retroactive pay and benefits". The grievor has never been a member of the full time bargaining unit. It is submitted by counsel for the grievor and the union that, although there may be separate collective agreements it was never intended by the parties that they be seen as standing alone. Thus, while normally employees would look to the collective agreement for the bargaining unit in which they are employed as the source of their rights and benefits, it is submitted in this case that the rights of both full and part time employees can be found in both collective agreements; that unless there is some specific 4 indication to the contrary, the general provisions set out in the full time agreement should be read as extending to members of the part time bargaining unit. Clearly this would be a result that would offend fundamental precepts that govern certification and collective bargaining, viz, that the union obtains exclusive bargaining rights in respect of employees in a defined and prescribed bargaining unit That having been said it is, of course, open to the parties to negotiate a different arrangement. Consequently, it is necessary to examine closely the provisions of the collective agreements negotiated by the parties. In support of its position the union noted that the two documents are stapled together and that the part time agreement is stated to be an Appendix of the full time agreement. The Table of Contents that appears in the front of the full time agreement lists the various articles of that agreement followed by 15 Letters of Intent and Appendix 1. Appendix 1, entitled Part -Time Staff Collective Agreement, consists of two articles. Article 1 lists those articles of the full time agreement that are to be considered included in the part-time agreement. This appears to be a device to avoid replication in full of the same text as that contained in the full time agreement. Rather than reproduce these articles in full they are simply identified by reference to the Article number in the full time agreement. 5 However, not all of the articles of the full time agreement are included in this list. Thus, Article 2 of Appendix 1 makes provision for certain Schedules to be added to the full time agreement provisions that were "transplanted" into the part time agreement by virtue of Article 1. For present purposes it is relevant to note that included among those Articles of the full time agreement that are not so "transplanted" to the part time agreement and which are therefore dealt with by a separate Schedule are those respecting Seniority and Vacancies and New Positions. Further, none of the Letters of Intent referable to the full time agreement are made a part of the part time agreement. Counsel also referred to various provisions of the two agreements that, in his submission, indicated an intention that they be read together. Article 15.02 of the full time agreement states that employees holding a full and part time position with the gallery must complete the appropriate probationary period for each position. Article 15.07 deals with the transfer of a full time employee from the full time unit to a regular part time position in the part time unit and provides that, while in the part time unit, she will accumulate seniority in accordance with the provisions of the part time agreement applicable to regular part time employees, and, in the event of her later return to the full time unit, may take that accumulated seniority with her. A companion provision (Article 15.07(a)) deals with the converse situation and provides that when a part time employee is 6 transferred to the full time unit, her service and seniority will be calculated on the basis of one year equals 1,800 hours. Finally, Article 15.08 permits an employee in the full time unit who has previously worked as a regular part time employee and who is transferred back to a regular part time position in the part time bargaining unit to carry with her any part time seniority previously accumulated under the part time agreement. Counsel also made reference to various provisions in the part time agreement that, in his submissions, reflect a common intention to read the two as one agreement. Schedule C.09, which is identical to 15.07(a) set out above, purports to provide, in the part time agreement, a formula for calculating the service and seniority that a part time employee transferred to the full time unit would take with her. Reference was also made to Schedule B.01 of the part time agreement. It acknowledges that it is the intention of the parties to negotiate the renewal of both collective agreements at the same time and provides that the Gallery "will recognize that a representative of the part time bargaining unit shall be entitled to participate as a member of the Union Negotiating Committee representing full time employees." It may be noted that the list of names of those persons designated to sign the agreements is identical for both the full time and the part time agreement. In 7 Schedule B.02 the Gallery also recognizes the union stewards appointed from the full time unit pursuant to the full time agreement may assist part time employees in presenting grievances. Thus, it is argued by the union that the two agreements should not be read separately. Rather, it is submitted that, having regard to the fact that earned seniority can be carried back and forth between bargaining units, and considering that seniority is one of the relevant factors in determining whether or not to award a posted vacancy under Article 16.03 of the full time agreement, the grievor should be entitled to claim the benefits and protection of Article 16.03. Since nothing in Article 16.03, or in the full time agreement generally, specifically prohibits her from posting for a vacancy in the full time unit, she should be permitted to do so. Hence, it is submitted her grievance protesting the denial of the position is an arbitrable grievance. I am unable to agree with the position of the union in this matter. I agree with the general proposition advanced by counsel for the company, viz, that unless there is clear and compelling language to the contrary, the collective agreements should be read as separate and distinct and as conferring rights only on those members of the bargaining unit that are subject to its terms. That proposition is consistent with the certification and collective 8 bargaining system under which the Labour Relations Board identifies employees who have a community of interest and declares a unit of such employees appropriate for collective bargaining. The Ontario Labour Relations Board in its wisdom has decided to certify the full time and the part time employees of the employer as members of separate bargaining units. Were I to adopt the position advanced by the union, viz, that members of both units are entitled to the benefits of both collective agreements, unless they are expressly excluded, I would, in effect, be acting in the face of separate certifications of the two bargaining units. Of course the parties are free to negotiate collective agreements that vary the scope of the bargaining unit, perhaps even to the extent of effectively merging the two units. However, there is another more direct way of accomplishing that kind of objective if that is what is desired, viz, a joint application to the labour relations board to vary the bargaining unit. Where it is sought to accomplish that result indirectly, through the medium of arbitral construction of two collective agreements, I believe a heavy onus lies on the party asserting that such a result was intended. Nothing in the provisions of the collective agreement referred to me by counsel for the union persuades me that there was any common intention that all members of both units share in the benefits of both collective agreements unless specifically excluded. Certainly there is no express language to that effect. Pi Furthermore, the language of the full time agreement can be sensibly construed so as to exclude members of the part time agreement from exercising any rights thereunder Article 16.01 of the full time agreement reads: The Gallery shall post notice of permanent and temporary job vacancies subject to Article 3 for a period of five working days before any such job is permanently filled... Probationary employees shall not be entitled to apply for posted vacancies. It is agreed that the Gallery interviewed. Further, the Gallery will notify existing applicants in writing once the successful applicant is selected. (Emphasis added). If the parties had intended to permit part time employees, who were members of the part time bargaining unit, to apply for posted full time vacancy one would have expected that this is the clause in which that would have been done. By Article 16.01 the parties have expressly turned their minds to the question of the applications "from outside" and have provided that they cannot be interviewed until "applications from existing employees have been reviewed and bargaining unit candidates have been interviewed." In other words preference is given for existing employees in the full time bargaining unit. It would have been a relatively simple matter to have, for example, inserted a provision in this article giving members of the part time unit a preferred claim over outsiders; that is, a provision that would require the Gallery to refrain from interviewing applicants from outside until it had first interviewed applicants from each of the bargaining units. 10 The failure of the parties to include a provision of that sort in Article 16.01 (its most logical place) indicates that such was not their intention. It may also be noted that, while the parties have been content to have a number of the provisions of the full time agreement apply to the part time unit, they have deliberately excluded from that list of provisions those relating to seniority and the filling of vacancies. It would appear that, at least in respect of the kind of issue that is before me, the parties have made it clear that they intend seniority and job posting to be dealt with under separate collective agreements. I do not consider the provisions of the full time agreement respecting the continued accumulation of seniority while transferring back and forth between the full and part time units to be of any assistance to the grievor or the union. They are nothing more than common sense provisions designed to ensure that, when employees do transfer from one unit to the other, they do not suffer any loss of seniority. They do not provide the basis for asserting a right to compel a transfer to the other unit or to claim the benefits of the collective agreement negotiated for the other unit. Yet that is what the grievor is claiming, that is, a right to invoke the job posting provisions of the full time agreement to compel the employer to transfer her from the part time unit to the full time unit. 11 Counsel for the union referred me to cases in which arbitrators have held that documents either incorporated into the collective agreement or referred to therein may be relied on by employees as a source of rights. (See Re Chateau Laurier and CBRT&GW (1988), 1 L.A.C. (4th) 129 (Frumkin); Re City of Windsor and ONA (1985), 19 L.A.C.(3d) 1 (McLaren); Re Canada Bread and Confectionary Workers International Union (1970), 22 L.A.C. 98 (Christie). I have read these cases and, with respect, find none of them to be helpful. They all involve situations in which the reference to the "source" outside the collective agreement was such that there could be little doubt that the parties had intended the collective agreement obligations to extend to cover that "source. A number of cases filed on behalf of the employer are much more to the point. In Re Brockville General Hospital and ONA (unreported) there were separate certifications of a full time and a part time bargaining unit. A board of arbitration permitted a part time employee who was a member of a part time bargaining unit at the hospital to grieve a denial of a position in the full time bargaining unit. On judicial review the Ontario Divisional Court quashed the award. The Court noted that "normally" the grievor would not "be covered by the full time agreement because she is not part of that bargaining unit"..and that as such "whatever grievance or other procedure that she pursued would not properly be considered under the full time agreement." After reviewing provisions of the collective agreement the court concluded that as 12 the recognition clause clearly excluded the grievor [she) "was not a person that had the right to grieve...." This case was followed by Arbitrator Simmons in Re Perlev Hospital and LUPE. Local 870 (unreported) where again a part time employee unsuccessfully applied for a job posting under the full time agreement. The difference between this case and Brockville Hospital is that in this case the grievance was filed under the part time collective agreement. The board decided that it had no jurisdiction to consider the grievance on its merits because the union was unable to establish that the grievor was denied any rights under collective agreement under which she was grieving. She was seeking appointment to a position that did not fall under the part time collective agreement and had no status to require the employer to do anything with respect to a position posted in the full time agreement. In Re Greater Niagara General Hospital and ONA (1987), 32 L.A.C. (3d) 140 (Brown) the Association grieved a management policy which would require employees who were transferring from the part time unit to the full time unit to be physically examined by a physician. There were two collective agreements and the grievance was filed under the part time agreement. The board addressed the jurisdictional question in the following language: It is clear from previous authorities that an employee has the right to grieve only under the collective 13 agreement covering the bargaining unit in which the employee is employed... (The board discussed "bridging" provisions which would allow employees under one collective agreement to grieve under the agreement and continued].... Such a significant provision which would accord a contractual right to a person outside of the full time bargaining unit would have to be made in the For the reasons set out above I am not persuaded that these parties have, in sufficiently clear language, agreed to allow members of the part time bargaining unit to post for vacancies in the full time unit and to grieve under that agreement a decision by the employer denying the application. Consequently, the grievor has no status to bring this grievance and the grievance must be dismissed. Dated at LONDON, Ont. this �day of 1992 14 G. J. Brandt, Sole Arbitrator.