HomeMy WebLinkAbout1996-2854.CRAGG97_04_23
"
OrvrARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'OwrARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEfTELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-13g()
GSB # 2854/96, 2856/96, 2857/96, 2859/96
OPSEU # 97D399-404
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Cragg et al)
Grievor
- and -
the Crown in Right of ontario
(Ministry of Natural Resources)
Employer
BEFORE o V Gray Vice-Chair
FOR THE C Walker
GRIEVOR Job Security Officer
ontario Public Service Employees Union
FOR THE S Kapur
EMPLOYER Counsel
Legal services Branch
Management Board Secretariat
HEARING April 14, 1997
-
.
Decision
ThIS deCISIOn deals wIth SIX grIevances filed on varIOUS dates m October
and November 1996, m WhICh the grIevors - Ivan Cragg, James McMullen,
OlIver Pastmak, Randall Pepper, RIchard Reynen and Doug Unsworth - allege
that they have been dIscrImmated agamst m the calculatIOn of theIr semorIty
Although the precise wordmg of the grIevances varIes somewhat, Mr Cragg's is
representative of the allegatIOns m these grIevances.
I gneve that I have been unfairly dIscrrmmated agamst m that my length of
semority relatIve to that of other staff has been reduced as a result of recent
recalculations or awards of semonty to other staff. This has been the result
of at least two occurrences: one bemg the 1991 "rollover" of unclassified staff
to classified staff, the other being the "Fisher decision" of July 24, 1996.
Because my length of breaks m service prIor to 1985 were greater than 13
weeks (through no fault of mine) I have been dIsallowed past public servIce
seniority
Background
The grIevors were appomted to the clasSIfied semce at varIOUS times be-
tween May 1980 and May 1989, after haVing previously worked m the unclassi-
fied servIce Their perIods of unclassified employment had sometimes been sepa-
rated by periods of unemployment, as the work they dId tended to be seasonal.
At the times of their appomtments to the clasSIfied servIce, Article 25 1(b) of the
collective agreement then m force governed the calculatIOn of an appomtee's con-
tmuous servIce date as a clasSIfied employee.
ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25 1 An employee's length of contmuous service will accumulate upon
completIOn of a probatIOnary penod of not more than one (1) year
and shall commence from
-
2 -
(b) the date on which an employee commences a period of unbroken,
full. time selVlce 10 the pubhc selVlce, unmedmtely prIor to
appointment to the Classified SelVice.
"Unbroken selVice" is that which is not interrupted by separation
from the pubhc selVlce, and "full time" is cont1Ouous employment as
set out 10 the hours of work schedules for the approprIate
classIfications.
(Amendments were made to Article 25 when the 1984/85 agreement was settled,
but It does not appear that those would have apphed to the gnevors who were
appomted after the effective date of those amendments.)
Under ArtIcle 25 1(b), credIt was only gIven for that portIOn of any prIOr
full-time unclassified employment m the publIc servIce that was both "contmu-
ous" and "ImmedIately prIOr to appointment." If an appomtee was not employed
m the unclaSSIfied (publIc) service at the time of his appomtment to the classified
(civil) semce - that is, If his last unclassified contract had ended before the date
of hIS appointment to the classified servIce - he got no credIt for any of hIS prior
unclassified service. If an appointee was employed in the unclaSSIfied service at
the time of hIS appointment, then he would get credit under article 25 1(b) for
the period from the date of his appomtment back to the begmnmg of that most
recent perIOd of contmuous, full-time employment. The pnor unclassIfied servIce
for WhICh credIt would be gIven would be broken, however, by any penod m
which the appomtee had not been employed m the unclassified semce on a full-
time basis. That break could be as short as a week. Full time servIce prior to
such a break would not be credited. Thus, someone appointed to the classIfied
service WIth a hIStOry of unclassified employment of a seasonal nature mter-
rupted by penods of unemployment would not get credIt for all of that pnor un
clasSIfied employment.
In 1990, the union grieved that the MmIstry of Natural Resources was
"Improperly treatmg a number of year round positIOns as seasonal posItIons"
The umon and employer eventually settled that gnevance on terms set out m an
agreement dated June 13, 1991 The umon and the employer agreed that the
mmistry would appomt to the clasSIfied servIce all mcumbents of Group 3 (1.e ,
seasonal) pOSItIOns of at least 43 weeks duratIOn If they satIsfied certam re-
~
.
- 3
qUlrement as to their length of servIce. SIgnificantly, the union and employer
also agreed that
3 The Ministry shall calculate each incumbent's length of cont1Ouous
servIce as a classified CIvil servant by creillt10g each incumbent wIth
semonty accumulated under article 3,20.1 of the collective agreement, to
be pro-rated as calendar rather than hourly service, thus providing a
calendar date of cont1Ouous servIce, based upon hours per day on the
appropnate schedule.
The partIes agreed to have that agreement Issued as an order of the GrIevance
Settlement Board ("the Board") In some of the documentatIOn before me the
agreement IS referred to by the Board's file number for the proceedings arIsmg
out of the grIevance that the agreement settled. 2181/90 I WIll refer to It here as
"the rollover agreement."
ArtIcle 320 1 (now 324 1) was part of a sectIOn of the collectIve agree-
ment dealing WIth the employment of seasonal employees Article 3 18 (now
32.2) defined a seasonal employee as an employee appointed for a perIOd of at
least 8 consecutive weeks to an annually recurrmg full-tIme posItion m the un-
classified service. ArtIcle 3.20 1 (now 32 4 1) of the collectIve agreement governed
the calculatIOn of a seasonal employee's semorIty for purposes of lay-offs from,
recalls to and other terms and conditIOns of employment as an unclass~fied sea-
sonal employee It provided that
3.20,1 A seasonal employee's semorIty wIth10 a m10Istry will accumulate
upon completion of his probatIOnary period and shall 10clude
(a) all hours worked as a seasonal employee at the straIght tIme
rate,
(b) periods of authorized pmd leave 10 accordance WIth SectIOn 3 32
Attendance Creillts and SIck Leave.
ArtIcle 3202 (now 324.2) defined the CIrcumstances m whIch a seasonal em
ployee would lose this accumulated seasonal semorIty Those CIrcumstances m-
cluded reSIgnatIOn, dIsmIssal, absence WIthout leave m excess of 10 days and de-
chnmg an offer of re-employment (except m CIrcumstances relatmg to pregnancy
or parental leave) OtherwIse, breaks m employment WIth the mmlstry did not
result m loss of thIS seasonal semorIty under artIcle 3 20 2 unless the break con
tmued for more than 12 months. It IS common ground that the concept of "sea-
4 -
sonal employee" dId not apply prIor to 1984, so that the seniorIty accumulated
under Article 3 20 1 could not Include hours worked prior to that year
In excess of 900 unclassIfied employees (the "rollover employees") were
appointed to the classified servIce pursuant to the rollover agreement. They were
gIven continuous semority dates calculated In accordance WIth paragraph 3 of
that agreement. ThIS generally gave the rollover employees an earlIer continUOUS
servIce date (greater semorIty) than they would have had If they had been ap-
pOinted as a result of a Job competItIon, In whIch case theIr continuous servIce
date would have been determined under ArtIcle 25 1(b), as the grIevors' had
been.
In August 1991 the umon filed a grIevance alleging that the employer was
breaching ArtIcle 25 of the collectIve agreement by calculating continUOUS servIce
dates dIfferently for rollover employees than for other appointees to the classIfied
service. After that grIevance was filed and before It became the subJect of a
hearing, the partIes settled the terms of theIr 1992/93 collectIve agreement. ArtI-
cle 25 1 was amended. With the 1992 amendments emphaSIzed, these are the
relevant parts of the artIcle as amended In 1992
ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25 1 Effectwe February 3, 1992, an employee's length of contmuous
service will accumulate upon completIOn of a probationary penod of
not more than nme (9) months and shall commence
(b) effectwe January 1, 1992, from the date estabhshed by addmg
the actual number of fuB-tune weeks worked by a full-ttme
unclasstfied employee dunng hts full-ttme employment back to
the first break m employment whtch tS greater than thtrteen (13)
weeks, or
(d) effect,we January 1, 1984, from the date estabhshed by addmg
the actual number of full ttme weeks worked by a full ttme
seasonal employee dunng Ins full ttme employment back 'to the
first break m employment whwh tS greater than thuteen (13)
weeks
"Unbroken servIce" IS that whICh IS not mterrupted by separatIon
from the publIc servIce, "full tune IS contmuous employment as set
out m the hours of work schedules for the appropnate classIficatIOns,
5
and "part-tune" is contmuous employment m accordance wIth the
hours of work specIfied in ArtIcle 61 1
The material before me shows that after the 1992/93 agreement was set-
tled, the employer revIewed the work hIstOry of employees who had been ap-
pomted to the clasSIfied service in prior years with a hIStOry of prIOr unclassIfied
employment what the mInIstry regarded as "seasonal" The mInIstry then recal
culated continuous servIce dates where and to the extent it felt that subpara-
graph 25 l(d) applIed to those mdlvlduals As a result, some employees (mclud
mg some of the grIevors) were assIgned an earlIer contmuous servIce date than
the one WIth which they had orIgmally been credited.
The mmIstry dId not apply subparagraph 25 l(d) to the rollover employ-
ees, however It contmued to treat those employees as havmg the contmuous
servIce dates they had been assIgned m accordance WIth paragraph 3 of the
rollover agreement. That meant that, by contrast WIth those appomted as a re-
sult of job competitIOns, their continuous servICe dates could reflect credIt for a
period of seasonal employment that had been followed by a break m employment
of more than 13 weeks (but not more than one year)
In July 1992 the UnIon filed another grievance challengmg the employer's
differential treatment of rollover employees with respect to senIority The Board
heard that grievance together with the August 1991 grievance The three alter-
nate pOSItIOns that the UnIon was then takmg were described m the Board's m-
terIm award of May 4, 1993 (Uman Gnevance, 1526/91 (Kaplan)) as follows.
In bnef, the umon takes a number of alternatIve pOSItIOns. First, that Article
25 1(b) of the 1989-1991 CollectIve Agreement prOVIdes that all unclassuied
servIce, whIch covers all calendar tIme from the date of an employee s first
seasonal contract until appomtment to the CIVIl servIce, IS credIted to the
employee upon entry mto the classuied CIvil service In the alternatIve the
union argues that the settlement of the 1990 Grievance was WIth prejudIce
and prOVIdes the formula agreed upon by the parties for the determmatIOn of
semority of all employees, not Just those who rolled over Or, m the further
alternatIve, that the prOVISIons of ArtIcle 25 l(d) of the successor CollectIve
Agreement cover all employees mcludmg those appomted to the classIfied
CIVIl servIce pursuant to the roll-over In the umon's submISSIOn, the new
Artlcle 25 1 retroactIvely readjusts the semontv of the roll-over employees
and m that way ensures that all employees are treated equally for the
purpose of semorIty calculatIOn
6
It appears that the UnIon abandoned the first two of these three positIOns before
the hearIng of the grievances had concluded. The Board's final decision of Sep-
tember 28, 1995 ("the Kaplan decIsion") indicates that the sole position advanced
by the UnIon In cloSIng argument was that the provisIOns of ArtIcle 25 1(d) of the
1992/93 agreement applIed retrospectIvely to all those apPoInted in or after 1984
WIth a pre-appoIntment hIStOry of seasonal unclassIfied employment, mcludmg
the rollover employees.
The Kaplan deCISIOn concluded that the 1992 amendments to ArtIcle 25 1
dId not eVIdence an IntentIOn to retrospectively abrIdge the senIority rIghts con-
ferred by the 1991 rollover agreement and that, accordIngly, the rollover employ-
ees would contInue to have the benefit of the contInUOUS servIce date calculatIOn
to wmch the UnIon and the employer had agreed In the MInutes of Settlement
referred to here as the rollover agreement. The Board added these observatIOns.
Needless to say, It is completely open to the parties to agree to set aside the
Memorandum of Settlement and prOVIde for the recalculation of the seniority
dates of the rollover employees m accordance with Article 25.1, and, m that
way, ensure the uniform calculatlOn of seniOrity throughout the bargaining
UnIt. That IS a chOIce that they can make, However, there IS no baSIS in thIS
case to fmd that thIS chOIce has been made And m the result, the
Memorandum of Settlement continues m effect, and will do so until the
parties meaningfully indIcate a jomt mtention that it be otherwIse
From Tung Sol forward arbItrators have emphaSIzed the rmportance of
seniOrity SenIority prOVISIons must be strictly construed. SIgnIficant
senIority rights were obtamed by the Memorandum of Settlement, and those
rights can only, and should only, be truncated, abridged, or forfeited, by very
clear language -language whIch, as we have found, IS completely absent m
thIS case
The results of the Memorandum of Settlement may be unpalatable Some
employees may have receIved a wmdfall, while others, gIven the relatIve
nature of senIority, have been dIsadvantaged, But it was the partIes'
deCIsion If they want to change It, they are free to do so
The partIes settled the terms of theIr 1994/98 collective agreement In
March 1996 knOWIng that there would soon be a substantIal number of perma-
nent lay-offs, m whIch employees' contmuous servIce dates would playa substan-
tial role In determInIng who remaIned employed and who dId not. They dId not
change eIther the rollover agreement or Article 25 1
- 7
On May 23, 1996, however, the umon and the employer entered mto the
followmg agreement.
1 The parties agree that the prmpples of ArtIcle 25 1(b) shall apply m
cases of GO-Temp employees appo1Oted to the classuied staff,
For example, an employee who was appointed to classuied service July 5,
1994 and served as a GO Temp from January 15 1991 to <July 4, 1994
and. had a break from March 6 to 18, 1993 shall be gIVen a contmuous
servIce date of January 15, 1991 Only a break 10 employment greater
than thIrteen weeks shall cause a break m servIce for purposes of thIS
letter;
2. The parties agree that Article 25 1(b) apphes to all employees
Irrespective of date of appo1Otment to the classuied servIce,
A dIspute about thIS agreement came before Vice-ChaIr FIsher on June 18, 1996
It IS not apparent what Issues were imtIally m dIspute, other than the matter of
"ImplementatIOn date" referred to m VIce-Chair FIsher's mterIm decIsIOn of
June 18, 1996 (Unwn Gnevance, 487/96)
I have revIewed the agreement of the parties dated May 23, 1996 concernmg
the calculation of continuous servIce, It IS clear that the parties were in
agreement wIth respect to the calculation formula as it affects unclassified
employees. There IS no dispute between the parties on this pomt, However
the agreement, bmchng as It IS, bears no date of rmplementatlOn. In the
context of a very seriOUS labour relatIOns enVIronment of mass layoffs, the
parties must immedIately address the Issue, We will hear submIssions on the
issue of the rmplementatIOn date when we reconvene on July 24, 1996. In
making those submISSIOns, the UnIOn should prepare to respond to the
employer's pOSItion that, gIven that the letter commits the employer to terms
and condItions of employment that are superior to that in the collective
agreement, the implementatIOn date for the letter of agreement should not
be effective on the same date as the collective agreement.
This was followed on July 24, 1996 by the "FIsher deCISIOn" to whIch the
grievances refer Havmg regard to those references, It IS Important to be clear
about what VIce-ChaIr FIsher deCIded. After referrmg to hIS mterIm deCISIOn and
quoting the parties' agreement of May 23, 1996, Vice-ChaIr FIsher saId thIS.
As noted in the 10terIm deCISIOn the parties are m agreement as to the
apphcatlOn of the terms of the above Agreement. Paragraph 1 provIdes that
cont1Ouous full tIme GO-Temp servIce Immediately pnor to appomtment to
the classuied servIce shall be mcluded m the calculatIOn of an employee's
contmuous servIce date The effect of the Agreement m thIS regard IS to
amend ArtIcle 25 1 (b) of the CollectIVe Agreement to formally 10clude GO
Temp servIce as unclassIfied servIce for the purposes of calculatmg an
employee's contmuous servIce date,
- 8 -
Paragraph 2 of the Agreement further amends Article 25 to negate the effect
of the reference to February 3, 1992, m 25 1 and the reference to January 1,
1992, m 25 1 (b) m that the calculatIOn formula, as amended by paragraph 1
as described above, apphes to all unclassified employees (i,e. excludmg
former seasonal unclassIfied covered under Article 25 l(d)) equally
irrespective of their date of appomtment to the classified servIce. It IS
apparent that the parties have agreed that a single calculation formula shall
apply to all persons appointed to the ClVil Service pursuant to Article
25 1(b) PrevIOusly a duferent formula was used to calculate the semonty of
a person appomted to the classuied servIce pnor to the CollectIve Agreement
dated January 1, 1992 to December 31, 1993 than a person appomted to the
classuied durmg the term of that CollectIve Agreement. The May 23, 1996,
Agreement elImmates thIS mconsistency
However, one further Issue arose m respect to the mterpretation of the
Agreement, The example CIted m respect to paragraph 1 IS mcorrect and
flIes-in the-face of the clear and express wordmg of ArtIcle 25 1(b) m that It
appears to give senionty credIt for tune not worked, l.e, March 6 to 18, 1993.
Article 25 1(b) states that a classified employee's continuous service date
"shall commence from the date establIshed by adding the actual number of
full-hme weeks worked (emphasIs added) " The fIrst sentence m paragraph
1 mchcates the parties' intentIon sunply to mclude GO-Temp servIce as
appropnate unclassIfied servIce It is clear and unambIguous, There 18 no
eVIdence of any mtentIOn to alter the clear wordmg of Article 25 1 Therefore,
m the example con tamed m paragraph 1 the January 15, 1991 date would
have to be adjusted to accommodate the break in service from March 6 to 18,
1993, thereby estabhshmg a new attributed continuous servIce date,
The next Issue to be dealt with is when should the Agreement be
Implemented? The Umon's pOSItion IS that the implementatIOn date should
be the date of the agreement. The Employer's representative argued that the
Agreement can not be implemented until the then current round of lay-offs
IS completed.
Mter carefully considermg the matter, the Board's decision IS that the
Agreement should be unplemented as of July 24, 1996, To fmd m favour of
the Umon would reqUIre clear worchng m the Agreement that the parties
mtended to alter the method of calculatmg semonty m the mIdst of maSSlVe
lay-offs occurrmg Absent clear language to that effect, the Board cannot
find that the parties intended the Agreement to be unplemented on the day
It was sIgned.
However clearly the partIes have SIgnalled theIr mtentIOn to mstItute a
smgle semonty formula for persons appomted to the classIfied servIce WIth
pnor full time (non-seasonal) unclassIfied service. In response to a questIOn
from the Board, the Management Board representative mchcated that at
present no large-scale lay-offs were underway Accordingly, thIS Board
orders that the calculatIOn formula m the May 23, 1996 Agreement be
Implemented as of the date of thIS hearmg July 24, 1996.
The Umon raIsed one final matter to be determmed. VacatIOn entItlements
as with other benefits under the parties' CollectIve Agreement are dependent
on an employee's length of contmuous servIce, It IS thIS Board's finchng that
all benefIts contmgent upon length of contmuous servIce shall be adjusted m
accordance WIth all revIsed contmuous service dates resultmg from the
- 9 -
rmplementatIOn of the May 23 Agreement. There shall be no retroactive
entitlements,
Finally, It should be understood that this ruling has arisen out of extremely
unique circumstances and should not be viewed as a precedent in any
respect, At the Board's urging the parties agreed that this decIsIOn is of no
precedentIal value,
I t is so ordered.
What IS noteworthy is that Vice-Chair FIsher dId not select or Impose a new for-
mula for calculatmg contmuous servIce dates. He merely recorded the partIes'
new agreement with respect to the calculatIOn of contmuous servIce dates, and
addressed some Issues that had ansen wIth respect to the applIcatIOn of that
agreement.
Issues and Argument
It is important to record first what is not in Issue. The Union says It does
not seek to reargue the case dealt wIth in the Kaplan deCIsion. It says It does not
claIm that changes to the collective agreement smce the Kaplan decIsIon warrant
reVIsItmg the questIOn whether the 1991 rollover agreement contmues m effect.
The Union says It is not askmg that the contmuous servIce dates of rollover em-
ployees be recalculated in accordance with what IS now Article 18 (formerly ArtI-
cle 25)
The Union observes that a substantial number of mmlstry employees were
surplused in May 1996, mcludmg some of the grievors. Those surplused gnevors
say that they were dIsplaced by rollover employees whose SeniOrIty exceeded
theIrs only because those employees had had the benefit of the rollover agree-
ment's more favourable treatment of breaks m pre-appomtment unclassIfied
servIce In addItion, both they and the gnevors who have not (yet) been sur-
plused complam that the "more than 13 week" test IS dIscnmmatory m ItS applI
cation to past seasonal unclasSIfied employment because m tImes past some ar
eas of the provmce had had a polIcy that seasonal employees were to be em
ployed for a maXImum of 9 month followed by a mInimUm lay-off of 3 months At
least two of the gnevors have commenced proceedmgs before the Ontano Labour
,
10-
RelatIOns Board wIth respect to what they perceIve as unfaIr representatIOn wIth
respect to these Issues.
The umon presented, orally and m wrItmg, the arguments that the
grIevors had to make about the unfair Impact on them of the rollover agreement
and 13 week hmlt. I do not propose to reproduce all of those arguments m detaIl.
Mr McMullen's IS illustratIve, both of the Issues, the nature of theIr Impact on
the grIevors and, especIally, the sigmficance that the grIevors seem to have at-
tached to the "FIsher deCISIon" of May 24, 1996
When I was hired to permanent staff an employees semonty started at the
FIRST break m servIce pnor to bemg hired to full time
In 1991, the "Rollover" occurred where approx. 1000 casual staff were placed
on full time permanent staff. They were also gIven the opportunity to
accumulate seniOrIty based on every day worked in the past seven years
prior to the rollover date, This had a very negatIve Impact on permanent
staff who were hired on permanent staff after 1984, in that they were not
entItled to the same potentIal senionty as the "Rollover" staff, ThIS semorIty
benefit offered to the "Rollovers" dId not affect staffhrred pnor to 1984,
WIth the "FIsher DecIsion", ALL staff was [SIC] entItled to all casual tIme for
senionty, provIdmg there was no break m servIce of more than 13
consecutIve weeks, ThIS was a benefit to some employees who never had a
break greater than 13 weeks, or had more than 13 weeks break in a calendar
year but not consecutIvely
Unfortunately there were many casual employees who because of regional or
distrIct pohcies, had breaks m servIce, greater than 13 weeks between
contracts, These employees are m a SItuatIOn now where they are denied
semority they have earned as defmed m the "FIsher DeCISIon"
In my sItuation, I had worked more than 9 months durmg the 1980 calendar
year, and was surprIsmgly reprunanded for It as though It were my fault a
pohcy had be [SIC] violated. I was mstructed to "take the wmter off" before
my next contract, This occurred on December 22, 1980 At thIS time I was
aware that I was assured a contract positIOn m Parks startmg on May 2,
1981, and thIS pOSItIon was Important m my career development to become a
ConservatIOn Officer Even though there may have been other contracts
avmlable somewhere m the provmce sooner than May 2, I wasn't about
jeoparchze the contract I had been offered startmg on May 2 1981 In those
tunes competItIOn for these contracts was fierce.
Between May 15, 1978, and December 22, 1980, I had worked 14 dllferent
contracts for the MNR, the hours worked equalhng approxImately 23 7
months. ThIS IS almost 2 years of semonty I am bemg demed because of the
13 week prOVISIOn of the "FIsher DeCISIOn," ThIS could prove to be a very
unportant length of tIme for me If further staff cutbacks contmue m the
MNR.
- 11 -
As the "FIsher" matter was worthy of a decIsion, so to [SIC] must our
grIevance as they are based on sImilar circumstances and we are basIcally
saymg that the FIsher decisIOn should be amended to exclude the 13 week
proviSIOn and allow for a day worked to be entitled to a days [sic] semority
The system was operating faIrly until the Rollover when the rules were
change [SIC] for a select group of employees. The FIsher DecIsIOn mcludes
more employees m the semorIty Issue but not all, To make thIS faIr, once
again every employee should be entItled to a days [SIC] seniorIty for every
day worked,
The UnIon says that the grIevors do not understand what reason there
would be to perpetuate a two-tier system of semorIty, and that they look to thIS
Board to remedy the SItuatIOn. They want to know whether they can have theIr
continuous servIce dates recalculated wIth reference to ArtIcle 32 4 1 (formerly
3.20 1), In the same manner as the rollover employees' continuous servIce dates
were calculated.
The employer's pOSItIon is that thIS Board has no JUrisdictIOn to direct
that any proVIsion of the rollover agreement be apphed to these grIevors, as they
were not "current Incumbents" wIthm the meanmg of that agreement, nor to re-
quire that the grIevors' continuous servIce dates be determmed otherwise than in
accordance WIth what is now Article 18 With respect to the concern about per-
petuatIOn of a two-tIer system of semorIty, It notes Vice-ChaIr Kaplan's observa-
tIon that the system is as the partIes made It, and that If they WIsh to change it
they can do so m collectIve bargammg
Decision
An employee's contmuous servIce date determines hIS or her semonty for
purposes of Job competItIOns, bumpmg and recall nghts and other entItlements
mvolvmg the relatIve semonty rankmg of employees It also determmes whether
an employee whose employment ends WIll receive certam termmatIOn payments,
and m what amount. Durmg a penod of substantIal downsIzmg, an employee's
contmuous servIce date IS of consIderable Importance. Over the years, the partIes
have created a comphcated set of rules about what credIt a classIfied employee IS
entItled to WIth respect to pnor unclaSSIfied servIce when hIS or her contmuous
servIce date IS calculated These mdIvldual gnevances appear to sprmg, at least
.
12 -
in part, from a mIsconception of the role the Grievance Settlement Board plays
with respect to those rules
Several of the grievances speak of recent recalculatIOns or awards of sen-
IOrity as havmg been "the result of' a decIsIOn of the Board (the "FIsher decI-
SIOn"), among other thmgs Mr McMullen's Written submIssIOn that "the FIsher
decIsIOn should be amended to exclude the 13 week provisIOn" suggests that he,
at least, thought that that decIsIon Imposed the "13 week prOVIsIOn" that the
grIevors regard as dIscriminatory Mr Pepper's written submIssIOn asserts that
the '''FIsher decision' of July 25, 1996 [SIC] awarded semorIty to all staff for cas-
ual time worked back to theIr first break of 13 weeks or more" If the grIevors
were under the IllUSIOn that a Board deCIsion had purported to "award" semorIty
or otherwise change rules about calculation of contmuous servIce dates, then one
can understand how they mIght also have thought that the filmg and referral to
arbItration of their own grievances might result In another such change to those
Tules.
It IS not clear what engendered In the grievors thIS notion that the Board
has the power to vary the partIes' rules. DocumentatIOn prepared and filed by
the employer in thIS proceeding uses the term "GSB #2181/90" to describe the
1991 rollover agreement that settled the grievance that was the subject of that
Board file and "FIsher award" to describe the requirements of the agreement re-
ferred to in the FIsher deCIsion. Perhaps one or both of the partIes used "FIsher
deciSIOn" or "Fisher award" in their commUnICatIOns WIth employees as a short-
hand way of referrmg to the agreement of the partIes to whIch that deCISIOn re-
fers. Perhaps It IS in that way that the grIevors got the notIOn that the Board has
JUrISdICtIOn to "award" semorIty WIthout regard to the partIes' rules Whatever
the OrIgm of the grIevors' notIOn may be, however, It IS SImply wrong
The rules about how contmuous serVIce dates are calculated are the prod
uct of agreements made by the UnIon and the employer ThIS Board has no power
to change any lawful agreement the parties have made m that regard Indeed,
13
the partIes' collective agreement expressly provIdes that the Board has no such
power
In their rollover agreement, the union and the employer agreed that those
appomted to the classified servIce pursuant to that agreement would have a con-
tmuous servICe date calculated WIth reference to ArtIcle 3.20 1 of the collectIve
agreement, an artIcle that would not otherwise have governed the calculatIOn of
a classIfied employee's contmuous servIce date. The UnIon suggests here that
that provision of the rollover agreement should also be applied to employees, like
the grievors, who were appomted to the classified servIce otherwIse than pursu-
ant to the rollover agreement. The union raIsed that argument m the proceed-
mgs that led to the Kaplan decisIon, but WIsely abandoned it. It IS WIthout foun-
datIOn. The language of the rollover agreement IS clear- It apphed only to those
appomted to the classIfied service pursuant to its terms.
The grIevors were not appointed pursuant to the terms of the rollover
agreement. Article 25 1 was the prOVISIOn that determmed theIr contmuous
i servICe dates following theIr appomtments to the classIfied servIce. UntIl 1992,
! that meant that any break m employment precluded credIt for theIr prior un-
classified employment. As regards theIr prior seasonal unclassified employment,
t the more generous 13 week prOVISIOn was apphed to them as a result of the par-
r
tIes' agreement in 1992, not of the 1996 "FIsher deCISIOn."
The partIes' agreement of May 23, 1996, to whIch the FIsher deCISIOn re-
ferred, prOVIded that "ArtIcle 25 1(b) applies to all employees irrespectIve of date
of appomtment to the claSSIfied servIce." That resulted m changes to the con
tmuous servIce dates of some pre-1992 appomtees, mcludmg grIevor Unsworth,
for whom retrospectIve apphcatIOn of the 1992 verSIOn of ArtIcle 25 l(b) resulted
m more credIt for pre-appomtment unclassIfied servIce that was not "seasonal."
The employer apparently dId not treat that prOVISIOn as reqUiTIng that the con-
tmuous servIce dates of the rollover employees be retrospectIvely recalculated m
accordance WIth the prOVISIOns now applicable to other employees, mcludmg the
grIevors The UnIon does not challenge that approach. It has saId It does not
- 14 -
claIm that that or any other change to the collective agreement s10ce the Kaplan
decIsIon warrants revIslt10g the questIOn whether the 1991 rollover agreement
cont1Oues in effect.
In short, the 13 week prOVISIOn about whIch the grievors compla1O IS a
proVISIon to whIch theIr umon and their employer agreed TheIr umon and theIr
employer together have the power to change it. ThIs Board does not. Rollover
employees have continuous servIces dates calculated on a dIfferent basis than IS
apphed to the grievors and other employees because that IS what theIr umon and
theIr employer agreed to 10 1991 That dIfferential treatment cont1Oues because
the union and the employer have not agreed to elim10ate it.
The function of the Gnevance Settlement Board IS to resolve disputes con-
cermng the interpretation, applIcation, adm1OlstratIOn or alleged contraventIOn
of the relevant collective agreement between the umon and the employer That
collective agreement specifically prOVIdes that 10 do1Og so "[t]he Gnevance Set-
tlement Board shall have no JunsdIction to alter, change, amend or enlarge any
provisIOn of the CollectIve Agreement" (ArtIcle 27 16) I have no JurIsdiction to
repaIr any alleged inequity 10 the terms of that agreement by read10g 1Oto it
somethmg that IS not there.
The employer dId not VIOlate the collective agreement 10 calculat10g the
gnevors' cont1Ouous servIce dates if It properly applIed what IS now ArtIcle 18 of
the collective agreement in do1Og so There IS apparently some dIspute about
whether ArtIcle 18 was properly applIed 10 the cases of some of the gnevors The
umon asked that I be seIsed WIth those Issues 10 these gnevances even If the
gnevors' claIm to have theIr semorIty calculated on a dIfferent baSIS IS dIsmIssed
The employer dId not object to deal10g WIth that dIspute 10 that way
For the forego1Og reasons, the gnevors' claIm that theIr cont1Ouous servIce
dates should be calculated otherwIse than 10 accordance WIth Article 18 of the
current collectIve agreement IS dIsmIssed I rema10 seIsed WIth these gnevances
for the lImIted purpose of resolv1Og any dIspute about the proper apphcatIOn of
- 15
ArtIcle 18 to these gnevors that the partIes are not now able to resolve them-
selves. In all other respects, these grIevances are dIsmIssed.
Dated at Toronto this 23nd day of April, 1997
7
/~/ /
~~~ce-ChaIr