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HomeMy WebLinkAbout2006-0063.Somers et al.07-06-11 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-0063, 2006-0288, 2006-0289 UNION# 2006-5111-0001, 2006-5111-0003, 2006-5111-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Somers et al.) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Val Patrick Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario HEARING May 30, 2007. 2 Decision I have individual grievances before me filed by Mr. C. Somers, Mr. D. Sam and Mr. D. Patterson. The parties agree that the issue for determination in all the grievances is the date to be utilized to determine each grievor?s vacation entitlement. The Union takes the position that the seniority date determines vacation entitlement and requests a declaration to this effect. The Employer takes the position that the date they were appointed to the full time customer service representative position determines vacation entitlement for each grievor. There was no challenge to my jurisdiction to hear and determine these grievances. The parties provided me with an agreed statement of facts with supporting documentation. No oral evidence was called. The agreed statement of facts reads as follows: AGREED STATEMENT OF FACTS 1. The parties are subject to a Collective Agreement, the term of which runs from April 1, 2005 to March 31, 2009. A copy of the Collective Agreement is appended hereto as Exhibit ?1?; 2. Prior to 2005, bargaining unit employees of the Employer were represented by The Ontario Liquor Board Employees Union (?OLBEU?). In 2005, the OLBEU merged with OPSEU to become the Union; 3. In 1998, and while he was a casual employee, the Grievor Charlie Somers (?Somers?) filed a grievance when he was not appointed to a full time position pursuant to a job competition in 1998 (?the 1998 grievance?). While the 1998 grievance was outstanding, and pursuant to a 1999 job competition, Somers was appointed to a full time customer service representative (?PFT CSR?) position effective November 22, 1999, with a seniority date of November 22, 1999. In 2000, Somers, the OLBEU and the Employer entered into Minutes of Settlement which resolved the 1998 grievance (the Somers Minutes?). A copy of the Somers Minutes is appended hereto as Exhibit ?2?; 4. Somers? appointment date to a PFT CSR position is November 22, 1999 (?Somers? service date?). Somers? seniority date as a PFT CSR was adjusted in the Somers 3 Minutes to June 28, 1998 which is different from his seniority date as a casual employee; 5. The Grievor Charlie Somers (?Somers?) filed a grievance at Stage 2 dated January 30, 2006, and a grievance at Stage 3 dated March 1, 2006 (collectively ?Somers? grievances?) that was referred to arbitration and is the subject of GSB #2006-0063. A copy of Somers? grievances is appended hereto as Exhibit ?3?. This is the first time that Somers filed a grievance about his vacation entitlement; 6. Somers and the Union claim that he is entitled to vacation credits based upon his seniority date of June 28, 1998; 7. In 1997, and while he was a casual employee, the Grievor Doug Sam (?Sam?) filed a grievance when he was not appointed to a full time position pursuant to a job competition held in 1997 (?the 1997 grievance?). While that 1997 grievance was outstanding and pursuant to a 1999 job competition, Sam was promoted to a PFT CSR position effective November 22, 1999 with a seniority date of November 22, 1999. In 2000, Sam, the OLBEU, and the Employer entered into Minutes of Settlement which resolved the 1997 grievance (?the Sam Minutes?). A copy of the Sam Minutes is appended hereto as Exhibit ?4?; 8. Sam?s appointment date to a PFT CSR position is November 22, 1999 (?Sam?s service date?). Sam?s seniority date as a PFT CSR was adjusted in the Sam Minutes to September 15, 1997 which is different from his seniority date as a casual employee; 9. The Grievor Sam (?Sam?) filed a grievance at Stage 2 dated February 14, 2006 and a grievance at Stage 3 dated March 28, 2006 (collectively ?Sam?s grievances?) that was referred to arbitration and is the subject of GSB #2006-0228. A copy of Sam?s grievances is appended hereto as Exhibit ?5?. This is the first time that Sam filed a grievance about his vacation entitlement; 10. Sam and the Union allege that he is entitled to vacation credits based upon his seniority date of September 15, 1997; 11. In 1997, and while he was a casual employee, the Grievor Dave Patterson (?Patterson?) filed a grievance when he was not appointed to a full time position pursuant to a job competition held in 1997 (?the 1997 grievance?). In 1998, and while he was a casual employee, Patterson filed a grievance when he was not appointed to a full time position pursuant to a job competition held in 1998 (?the 1998 grievance?). In 1999, and while he was a casual employee, Patterson filed a grievance, when he was not appointed to a full time position pursuant to a job competition held in 1999 (?the 1999 grievance?). In 2000, Patterson, the OLBEU and the Employer entered into Minutes of Settlement which resolved the 1997 grievance (?the Patterson Minutes?). A copy of the Patterson Minutes is appended hereto as Exhibit ?6?; 4 12. Patterson?s appointment date to a PFT CSR position is June 26, 2000. Patterson?s seniority date as a PFT CSR is September 15, 2997 which is different from his seniority date as a casual employee; 13. The Grievor Patterson (?Patterson?) filed a grievance at Stage 2 dated February 16, 2006, and a grievance at Stage 3 dated March 28, 2006 (collectively ?Patterson?s grievances?) that was referred to arbitration and is the subject of GSB #2006-0289. A copy of Patterson?s grievances is appended hereto as Exhibit ?7?. This is the first time that Patterson has filed a grievance about his vacation entitlement; 14. Patterson and the Union claim that his vacation credits are based upon his seniority date of September 15, 1997; 15. Sam and Patterson?s 1997 grievances were referred to arbitration before Vice-Chair Dissanayake. Vice-Chair Dissanayake issued a decision dated February 24, 2000, a copy of which is appended hereto as Exhibit ?8?; 16. Despite the wording on the grievances referenced in paragraphs 5, 9 and 13, the Grievors and the Union are not alleging a violation of article 26.4 and are not alleging that the Grievors have been the subject of any discipline which has triggered the grievances; 17. The Parties request that Vice-Chair Petryshen determine what date each of the Grievor?s vacation entitlement should be based upon. As the agreed facts illustrate, each grievor has an appointment date and they also have a seniority date, a date which is different from and earlier than their appointment date. The appointment or service date represents the date each grievor was appointed to the permanent staff as a Customer Service Representative (?PFT CSR?) from a casual position. Each grievor obtained their seniority date through separate Minutes of Settlement resolving grievances that they had filed, grievances which in effect claimed that they should have been appointed to the permanent staff earlier. Mr. Somers and Mr. Sam had been appointed to a PFT CSR position prior to settling their grievances. The Minutes of Settlement relating to Mr. Somers adjusted his seniority date to June 28, 1998. The settlement of Mr. Sam?s earlier grievances adjusted his seniority date to September 15, 1997. Mr. Patterson was a casual employee when his earlier grievances were resolved. The Minutes of Settlement relating to his grievances provided him 5 with an appointment date that was effective upon execution of the document (June 26, 2000) and an adjusted seniority date of September 15, 1997. Article 8.6 is contained in the provision which addresses vacation and vacation credits for permanent staff. It provides in part as follows: 8.6 (a) Vacation credits shall be accumulated pro rata for each month of service as follows: (i) one and one quarter (1 1/4) days per month for up to and including eight (8) years of service; (ii) one and two-thirds (1 2/3) days per month after eight years of service; ? As is apparent, vacation credits accumulate based on ?each month of service? and it is after ?eight years of service? that the amount of credits increases to one and two-thirds days per month. The Union takes the position that service and seniority are synonymous in this context and therefore each grievor?s vacation entitlement should be based on their seniority date. The Union also submits that this result is reflected in the Minutes of Settlement relating to each grievor. The Employer argues that service and seniority are distinct concepts under the Collective Agreement and that when the parties used the word ?service? in Article 8.6 they did not mean seniority. The Employer also submits that the Minutes of Settlement adjusted each grievor?s seniority date, but did not alter their appointment or service date. th In addition to section 4:2100 in Canadian Labour Arbitration (4 Edition), Brown and Beatty, I was referred to the following decisions for the general principles contained therein: Re United Electrical Workers, Local 512 and Tung-Sol of Canada Ltd. (1964), 15 L.A.C. 161 th (Reville),Re Bon L Canada and U.S.W.A., Loc. 8412 (2002), 106 L.A.C. (4) 428 (Whitaker), Re United Automobile Workers, Local 195 and B. & K. Hydraulics of Canada Ltd. (1972), 23 6 L.A.C. 265 (Brandt), Re City of Richmond and Canadian Union of Public Employees, Local 718 th (1995), 52 L.A.C. (4) 380 (Thompson), Re Ottawa Civic Hospital and Canadian Union of th Public Employees, Local 1580 (1996), 59 L.A.C. (4 ) 159 (Herlich), Re Ontario Liquor Board Employees? Union and Liquor Control Board of Ontario (2006), GSB No.#2004-4023 (Carrier), th Re ACF Flexible Inc. and G.C.I.U., Loc. 500M (1989), 8 L.A.C. (4) 70 (Stewart) and Re Air th Liquide Ltd. and U.S.W.A., Loc. 6308 (1998), 77 L.A.C. (4) 230 (Verity). Counsel for the Employer referred me to numerous provisions in the Collective Agreement in which rights or benefits are based on service and other provisions in which rights or benefits are based on seniority. I do not intend review all of these provisions here. I note that the term ?seniority? is used in provisions that deal with layoff, promotions and in the allocation of overtime. Even though an employee accumulates vacation credits based on service, seniority becomes a factor in determining when an employee can use vacation credits. A review of the Collective Agreement provisions supports the Employer?s position that service and seniority are distinct concepts. By using the words ?months of service? in Article 8.6, I am compelled to the conclusion that vacation entitlement is based on the appointment or service date, and not on a seniority date. In other words, the amount of service an employee has accumulated as part of the permanent staff will determine that employee?s entitlement to vacation credits. A review of the Minutes of Settlement relating to each grievor does not disclose that the parties intended to affect the appointment date for each grievor and thereby affect the date for determining entitlement to vacation credits. In essence, each settlement has three key provisions. One of them provides an adjustment to each grievor?s full-time seniority date. Each grievor is also given an adjustment to their rate of pay ?as if the Grievor had been appointed to a full-time CSR position? as of their adjusted seniority date. Each grievor is also provided compensation 7 ?as if the Grievor had been appointed to a full time-position effective? on their adjusted seniority date. Although it was open for them to do so, it is clear that the parties did not alter the appointment or service date for each grievor when they addressed the wage adjustment and compensations issues. With respect to these issues, they were simply treating each grievor as if he had been appointed to the PFT CSR position on their adjusted seniority date. Indeed, the way in which the parties addressed the issues serves to highlight the distinction that exists between an appointment or service date and a seniority date. Not surprisingly, the Minutes of Settlement do not specifically address each grievor?s vacation entitlement. In my view, there is nothing in the Minutes of Settlement which supports the conclusion that each grievor?s entitlement to vacation credits will be based on their adjusted seniority date as opposed to their service date, as required by Article 8.6 of the Collective Agreement. For the forgoing reasons, it is my conclusion that there has not been a contravention of the Collective Agreement. Each grievor?s vacation entitlement is based on their appointment date to the PFT CSR position and not on their seniority date. Accordingly, the grievances are dismissed. th Dated at Toronto, this 11 day of June 2007. Ken Petryshen, Vice-Chair