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HomeMy WebLinkAboutEvans 08-04-01 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT AND IN THE MATTER OF AN ARBITRATION BETWEEN NIAGARA COLLEGE OF APPLIED ARTS & TECHNOLOGY (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A GRIEVANCE OF CHERYL EVANS (2006-0243-0003) (the "Grievor") BEFORE: Mr. C. Gordon Simmons, Chairperson Ms Ann Burke, College Nominee Mr. Ed Seymour, Union Nominee APPEARANCES ON BEHALF OF THE COLLEGE: Mr. Robert Little, Counsel Mr. Jim Garner, Director of Human Resources Ms Nicole Perreault, Human Resources Advisor APPEARANCES ON BEHALF OF THE UNION: Mr. Nelson Roland, Counsel Mr. Bob Holder, President, Local 243 Ms Cheryl Evans, Grievor A hearing into this matter was held in St. Catharines, Ontario on January 24, 2008. - 2 - The grievor claims the college has failed to give her credit for her proper seniority entitlement. She seeks to be credited with seniority in accordance with art. 14.3 in the collective agreement. That article reads: 14.3 Transfer into Union A person employed by the College, who is transferred into the bargaining unit, will be accorded full seniority, upon completion of the probationary period, based on length of service. Part-time support staff employees transferred into the bargaining unit, after November 14, 1991, shall have their seniority prorated, upon completion of their probationary period, based on a proration of hours of the part time [sic] position to the hours of the full-time position using 1820 hours per year as constituting the hours of the full-time position. It is understood, however, that for the purposes of the application of Article 15.4, administrative staff and employees in the academic staff bargaining unit, who are transferred into the bargaining unit shall be entitled to exercise only that portion of their seniority, if any, accumulated as an employee in the bargaining unit or what formerly was the bargaining unit. The union also referenced art. 14.5 which is reproduced here: 14.5 Proration of Part-Time Service for Probation Where a part-time employee is hired by the College into a full-time position in the bargaining unit, which is either the same position or, is sufficiently similar in nature, he/she shall be credited with service towards completion of the probationary period, based on a proration of the hours of the part-time position to the hours of the full-time position using 1820 hours per year as constituting the hours of the full-time position, to a maximum period of credit of three (3) months service towards the completion of the probationary period, and provided such service occurred within one (1) year of the date of hiring into the bargaining unit. The facts are not materially in dispute. The grievor was first employed on January 18, 1999 as a part-time employee. She was employed as a part-time employee from time to time until May - 3 - 31, 2003. She was not in the bargaining unit during this period. It is acknowledged that on occasion she worked in excess of the 24 hours per week which resulted in bumping her into hours worked outside what is traditionally considered part-time hours. It is acknowledged that during the periods she worked in excess of 24 hours a week she had union dues deducted. One additional fact is that between June 2000 and January 2001 there was a gap in her active employment while she was away on maternity leave. In 2003 her part-time consultant contract ended at which time she was issued a Record of Employment notice on which was written in the box "expected date of recall" - "02/09/200311. It is common ground that had matters remained unchanged she was expected to return as a part-time employee at the beginning of September 2003. But matters did not remain unchanged. Instead, she was offered a full-time position by letter dated August 26, 2003 with a commencement date of September 2 (ex. 4) which she accepted. She seeks to have her seniority prior to September 2, 2003 prorated to that point in time. The union points out that since becoming a full-time employee the grievor has been able to "buy back" pension entitlements for those periods she worked part time and she has also been able to access art. 14.5 to reduce on a prorata basis the period required to satisfy her probationary period. She seeks - 4 - prorata seniority privileges for all of her rights which would include vacation entitlements, etc. The union asserts the college has applied art. 14.5 in shortening the grievor's probationary period due to her part-time employment. It is acknowledged art. 14.5 refers to "hired" into full-time employment; whereas, art. 14.3 refers to "transfer". While it is acknowledged there may be a difference in the words used that difference is insignificant according to the union. The union puts forth a rhetorical question - how can a part-time employee be hired into the full-time position except by having been a previous part-time employee? Article 14.5 permits prorationing probation where the hiring into the full-time position is the same or sufficiently similar in nature which permits creditation of the probationary period on a prorated basis. By shortening the probationary period on a prorata basis the college recognizes the grievor's prior part-time service. The union urges the board to interpret "transfer" to include "hires". In support of its position the union relies on a quotation contained in George Brown College of AppliedArts and Technology a decision chaired by Bendel dated March 29, 1999 which contains a quote from another arbitration board chaired by Professor Palmer from Conestoga College. An excerpt, including the quote from that decision on p.3, reads: We respectfully endorse the conclusions of the board of arbitration chaired by Professor Palmer in Re Conestoga - 5 - College of Applied Arts and Technology and Ontario Public Service Employees Union (unreported award, dated January 10, 1986) relating to the same provision of the collective agreement, where the board said the following (at page 10): In our view, the word 'transfer' has a broader meaning than that suggested by the College. Its normal, every-day meaning, in a labour relations sense as well, covers all situations. 'Transfer' is a result; the cause lies elsewhere, for example, in a successful posting or, in appropriate circumstances, a decision by management untramelled [sic] by the collective agreement. Accordingly, the union urges the board to allow the grievance and award seniority to the grievor on a prorata basis which she earned while employed as a part-time employee. The college relies on art. 14.3 which it maintains does not provide the redress the grievor seeks. That is, the grievor's part-time employment expired on May 31, 2003. She was hired into a full-time position on August 26, 2003 which commenced on September 2, 2003. Thus, according to the college, there was a gap in her employment. Article 14.3 states that part-time support staff employees transferred into the bargaining unit are to have their seniority prorated. The college argues the grievor did not transfer into the bargaining unit. Rather, her part-time employment had expired in May 2003, then three months later she was hired into the bargaining unit. There was no transfer involved. Accordingly, so the college's argument goes, art. 14.3 does not assist the grievor. - 6 - The college points out that in the GeorgeBrown decision, in which the quote from Arbitrator Palmer appears, does not support the grievor's position. The facts in that case reveal the grievor was employed as a part-time employee from September 15 to December 19, 1980. She was not in the bargaining unit. She left her employment to work elsewhere. She returned to a full-time position on November 30, 1981. In 1996, following a review by the college of the seniority of all support staff, the grievor was informed her seniority date was November 1981. She grieved claiming she should have been credited for seniority purposes with her service in the fall of 1980. The board in the George Brown case made the following comments: ... Article 14.3 only applies to a person who was in the College's employ immediately before coming into the bargaining unit. That this is the only possible interpretation of Article 14.3 is clear from the use of the words '[a] person employed by the College' and the words 'transferred into the bargaining unit' in the first sentence of the clause, as well as from the balance of Article 14.3 setting out how it will apply in two particular cases. ... The grievance was dismissed. In response to the quotation from the Con~wga decision the college pointed out that decision dealt with an entirely different matter. The issue in that case was what happened if a part-time employee posted into a full-time position. The college argued that art. 14.3 did not apply to that situation as it was not a transfer. However, the college stated that if the college - 7 - were to come to the part-time employee and say that it was going to transfer the employee from the part-time position into a full- time position, then art. 14.3 would apply. It was in this context that Arbitrator Palmer was addressing the meaning of the word "transfer". That is not what happened in the instant situation. Here the grievor's part-time employment had expired. Months passed and she was hired into a full-time bargaining unit position. It was not a transfer and, therefore, art. 14.3 has no application. After carefully considering the matter, the board agrees that what transpired here was not a transfer but a hire. There was a break in the grievor's employment. Her contract of employment had expired. After a couple of months she was hired as a full-time employee into a bargaining unit position. We respectfully agree with the views expressed in the Bendel award in George Brown that in order for art. 14.3 to apply the grievor would have had to have been in the college's employ immediately before coming into the bargaining unit. This did not happen. Article 14.3 does not assist the grievor. The grievance is dismissed. - 8 - Dated at Kingston, Ontario, this 1st day of April, 2008. C. Gordon Simmons Arbitrator I concur/dioocnt "Ann Burke" Ann Burke College Nominee I concur/dissent without written submissions "Ed Seymour" Ed Seymour Union Nominee