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HomeMy WebLinkAboutMadronic 01-04-02 IN THE MATTER OF AN ARBITRATION BETWEEN SALVATION ARMY COMMUNITY LIVING (Hereinafter referred to as the "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 108 (Hereinafter referred to as the "Union") RE: LA YOFF GRIEVANCE OF ROBERT MADRONIC APPEARANCES FOR THE EMPLOYER Mr. Christopher White, Counsel Ms. Beth Traynor, Counsel Captain Beverly Hamilton, Executive Director APPEARANCES FOR THE UNION Mr. Alich: Ryder, Counsel Robert Madronic, Grievor DATE OF HEARING February 27,2001 DATE OF AWARD Apl'i12,2001 The grievor, Robert Madl'Onic, has grieved that he was improperly laid off and has asked that he be reinstated with full compensation. The events giving rise to the grievance originated in 1996 when the parties reached Minutes of Settlement which provided that the grievor be reinstated on terms set out in an Order issued by me on September 13) 1997. The terms of that Order included a standard confidentiality clause and, as a result) I have only included the portion of that order that is at issue in the case before me. That provision reads as follows: The grievor, Robert Madronic) shall remain permanently assigned to his current position as sleep-over staff at Hummingbird House and will not be eligible to apply for job postings for any other positions nor displace bargaining unit employees in other positions. Two years later the parties entered into negotiations for a new collective agreement which culminated in a strike that ended in April of2000. At the conclusion of the strike ce11ain changes occun-ed that directly affected the grievor) in particular, his position as sleep-over person at Hummingbird House. Hummingbird House had originally been created to accommodate four developmentally and physically challenged adults who had been housed in a facility in Brantford but transfelTed as part of the initiative of the goverrunent of the day to de-institutionalize residents in long telID care facilities. These four residents required 24 hour care and that, in turn, required 6 full time and 10 part time staff. Two of those staff were required to be in the House during the night; one to provide standard care, the other be back-up for emergency situations. That position required) in the normal course of events, no direct resident contact. That was the position the gtievor was placed in pursuant to my Order. During the strike the residents at Hummingbird house had been transferred back to Brantford and at the conclusion of the strike, and with the agreement of the families, the decision was made to leave the residents in the Brantford facility. As a result Hummingbird House was closed and the grievor)s position as sleep"over person was eliminated. Although the Employer 2 retained the premises at Hummingbird House and eventually reopened it as a facility for developmentally challenged children, the new program did not require a sleep~over position and the grievor was pelmanently laid off. The grievor received a letter dated April 7,2000 advising him that as a result of the restmcturing of the Community Living Program he was being laid off from his full time position. When he questioned the lay-ofT, he was referred to the Order of the Board produced earlier as grounds for his permanent lay-off. He then filed the grievance before me. In fact there are three grievances, one alleging an improper lay-off contrary to the policy and practices of the Employer, one alleging an improper termination contrary to the collective agreement and one alleging a violation of the Back to Work Protocol. All of these grievances relate to the same issue, and that is whether the Order of the Board applies in this situation and, if it does, what does it mean. The Back to Work Protocol referred to in his grievance was signed on March 23, 200 and contains a section dealing with the method of returning striking employees back to work. Succinctly put, it provides for the return of all employees on the basis of seniority allowing those with the most seniority to chose the program they prefer to work in subject to the needs of the individuals requiring the services. Mr. Ryder, counsel for the Union, took the position that the grievor has been dismissed without cause and should be reinstated with all benefits and seniority. It was submitted that the Employer has a prospective obligation to employ the grievor in a position that is independent of the operation of Hummingbird House. That obligation continues even if Hummingbird House closes. In the alternative, once the decision was made to close Hummingbird House, the contract between the Employer and the grievor was frustrated and the grievor reverted back to his status as a regular employee with seniority with all the rights and protections under the collective agreement and the Return to Work Protocol. Further, even though the residents were transfelTed to Brantford, Hummingbird House has been reopened and positions for the program were posted in November of 2000. That reopening of Hummingbird I-louse revived the contract between the grievor and the 3 Employer and he should have been reassigned to a full time position in Hununingbird House as was guaranteed in the Order. Mr. White, counsel for the Employer, took the position that the issue before me is whether the order pfthe board applies to this situation. In the first instance, it was argued that the Order is clear and unambiguous. The parties used the word "displaced" intentionally because they did not intend to allow the grievor to displace any other employee nor move out of the sleep-over position. In the alternative it was submitted that the Order is patently ambiguous and the words "permanently . . assigned" require clarification. Mr. White was involved in the negotiations of the Minutes of Settlement that formed the Order of the Board and was prepared to give evidence about those negotiations if necessary. With respect to the program offered in new Hummingbird House, there is no equivalent sleep-over position. The grievor's position as described in the Order no longer exists and the Employer has no further obligation to employ him. Mr. White and the grievor were the only witnesses to the negotiations of the Minutes of Settlement. Mr. White's evidence can be summarized as follows: there were very clear discussions between him and counsel for the Union, Mr. Stephen Satchell, about the intentions of the Employer concerning the reinstatement of the grievor. Specifically, it was explained to Mr. Satchell in detail that the only tenTIS upon which they would reinstate the grievor would be on the understanding that the sleep-over position had no resident care duties and never would. The Employer intended to prevent the grievor from bumping into any other position under any circumstances and Mr. White was clear about that in his discussions with Mr. Satchell. The words used in the proposed Minutes of Settlement were deliberately chosen to convey that understanding. The grievor's evidence was that he was never told the Employer's intention and did not and would not agree to Minutes of Settlement that would deprive him of his seniority rights under the collective agreement. He believed that as long as he was in the sleep-over position he could not displace another employee in another position. He did not believe that meant that if the sleep-over position was eHminated, he would be unable to bump into another position. He did, however, acknowledge that the Order was based on the mutual ulldersUmding that the Employer did not want him to work in any othcr position in the workplClce 4 that required resident care. Captain Beverly Hamilton is the Director of the London Village which is part of the Community Living Program of the Salvation AImy. She took over her duties in July of 1999 and was involved ~n the strike that began in September oIthat same year. It was her evidence that the program that was initiated in Hmnmingbird House after the strike is distinctly different from the program in place when the grievor was employed. It now involves the care of children who are developmentally challenged with high care needs that are not otherwise provided for in the community. It is funded by the Ministry of Community and Social Services under the Family Services Act wlnle the fOlmer program was ftmded as an adult program under the Developmental Services Act. The new program contains no sleep~over position such as had been occupied by the grievor. She frankly admitted that they gave no consideration to the placement of the grievor when Hmnmingbird House was closed because they believed that; under the provisions of the Order; they had no obligation to offer him employment. The only position he had a valid claim to was the sleep-over position that had been eliminated. SUBMISSIONS Without prejudice to its position; the Employer agreed to proceed first. However, it maintained, the onus was on the Union to show that the grievor had been improperly laid off. It took the position that the language of the Minutes of Settlement that fonned the Order of the Board are clear and unambiguous. The grievor was to be pelmanentIy assigned to the sleep-over position in Hummingbird House. It was not a promise of a job in perpetuity but rather a limited offer of employment to that position alone. It was; from the Employer's perspective; a mandatory posting to a pelmanent position from which the grievor could not move nor be moved~ The Employer could have placed the grievor on the relief list before or after the strike but was under no obligation to do so. It was also SH id that 10 suggest the duty to employ him extends beyond the lite of the job itself is 5 unreasonable and defies labour relations reality and common sense. The fact that the parties felt the need to prohibit against bumping out of or posting to another position indicates their understanding that at some point in time the position might disappear. Once that happened the prohibition against him using his seniority to displace someone else became operative. In the alternative, if the Board finds the language ambiguous and requires some assistance in reconciling the tension between permanent assignment and displacement; it was submitted that the clear and uncontradicted evidence before the Board resolves that ambiguity. The grievor . acknowledged that he tmderstood the Employer did not want him working at any other position than the sleep-over position. It did not want him involved in resident care. The Employer's evidence is equally clear. Counsel for the Union was advised in the clearest of terms the Employer's interpretation of the settlement offer. Whether that was relayed to the grievor is irrelevant for the purpose of this hearing. The Union's representative knew what the Employer intended and the grievor agreed to be bound by those telIDS. Mr. Ryder took the position that, although the Order of the Board deprived the grievor of certain rights under the collective agreement, he continued to be a bargaining unit member with all of the protections found within a collective agreement. The Minutes of Settlement and resulting Order should be interpreted carefully and in a restricted manner so as to give full effect to those rights. It was said there are two parts to the Order: the first for the grievor's benefit, the second for the Employer's benefit. In the first pm1 the grievor was promised a permanent job assignment. In return for that promise, he agreed to restrictions on his access to other positions. These parts exist together and should be read in a manner consistent with that interpretation. As long as his position as sleep- over person existed, he was bound by the limitations on his mobility. Once the job was eliminated, the limitations or restrictions became meaningless. Even the reference to limited displacement can be explained since it could have referred to a situation where the grievor might have been bumped by a more senior employee and been unable to bump a more junior employee as a result of the Order. All of the provisions of the Order can be J'(~ad in such manner so as to give the gl'ievor thefhlI 6 protection of his employment rights under the collective agreement. The language is clear and requires no extrinsic evidence to explain its meaning. Indeed. It was submitted, It would require clear language to the effect that the gdevor~s rights under the agreement for all purposes had been waived. No such language exists in this case and the Board should not be persuaded to read such ~ waiver into the language of the Order. REASONS FOR DECISION For the most part~ there is no dispute on the facts giving rise to these grievances. The grievor was a signatory to a settlement that reinstated him to the position of sleep-over person on the night shift at Hununingbird House. As part of that agreement the grievor was prohibited from exercising his seniority to post into another position or to bump another employee from his/her position. The parties were involved in a lengthy strike that ended in April of 2000 and which resulted in a restructuring ofits operations and programs. Specifically, the entire program at Hummingbird House was discontinued and the grievor~s position was eliminated. It is at this point that the parties differ as to what should have happened. The Employer takes the position that the Minutes of Settlement that subsequently formed an Order of the Board are clear. Its obligation to employ the grievor ended when his guaranteed position as sleep-over person was eliminated, He was prohibited fi'om bumping another employee and he was therefore properly laid off. The Union interprets the Order as a two part agreement, one part dependent on the other, It argues that the promise of a guaranteed job was given in return for a promise not to attempt to post for another job or to bump anyone out of another job. That waiver of the grievor's seniority rights was dependent on him continuing in the promised position. When the position was eliminated~ his agreement to forego his seniority rights was also eliminated. The Union also submitted that the Return to Work Protocol took precedence over the Order and it required the Employer to return employees to work based on seniority and their preference for a position. The grievor, it was said, should have been rehlrned on that basis, irrespective of the Order. With respect to the issue respecting the Return to Work Protocol, J distlgree. 'fhe terms of the 7 Minutes of Settlement were agreed to by the parties and were to apply as long as the position continued to be required or as long as the grievor was employed or until the parties negotiated alternative telms. The intervening strike and return to work agreement did not specifically alter the agreement ofthe parties in respect of the grievor's employment and cannot be read to alter the terms ~f that agreement. In the absence of any amendment of the Order, it applies in all respects to the situation after the strike. The question then becomes what the terms of the Minutes of Settlement and subsequent Order mean. . Written documents, in particular collective agreements "and Minutes of Settlements between the parties in a labour relations milieu, should be interpreted on the clear language of the written document. The intention of the parties should be determined by a usual and common sense interpretation of the words and terms of the document. Regard to extrinsic and external evidence should only be allowed if there is a patent 01' latent ambiguity in respect of those words or terms. In the instant case, both parties primarily take the position that the language is clear. They disagree on how that language should be interpreted. I agree that the language is clear on its face and I have no need to consider the evidence offered by the parties in coming to my decision; The importance of seniority rights in a collective agreement is beyond dispute. They are eamed through service and are designed to regulate the relative standing of employees within the workplace. They govern an employee's right to bid for transfers and promotions within the bargaining unit, the order in which employees will be laid off and employees' recall rights after a layoff. These are significant and substantive rights that cmmot be read out of a collective agreement without precise words to that effect. In the instant case, the grievor was promised a permanent position as sleep-over person in Hummingbird House. His seniority rights under the collective agreement were extremely limited in retulD for that permanent position. He could not use his seniority to post into any vacancies that might arise and he could not use his seniority to bump a more junior employee out of a position. The words of the Minutes of Settlement chosen by the parties are clear in that regard. What they do not say is that the grievor losses all of his seniority for all purposes. The collective agreement does contain a provision that defines the circumstances that must exist betore a person 8 loses his/her seniority and ceases to be an employee. Those situations include a voluntary quit, a discharge that is not reversed, a failure to return to work after a leave of absence, an unauthorized leave of absence, a failure to retum to work after a layoff and an absence from the payroll for more than 24 months. None of those situations are relevant to the instant case. Absent similar clear !anguage in the Minutes of Settlement, I cannot strip the grievor of seniority earned over several years of service. Having said that, the grievor's right to exercise that seniority is of little assistance to him. The only application of seniority left to him is a recall right to the sleep-over positioti: at Hummingbird House. That is the pelmanent position he was promised and that he has a claim to. Until that position is returned to the bargaining unit, he remains an employee on layoff. The grievance therefore is dismissed. The grievor was properly laid off according to the provisions of the collective agreement and the Order of the Board dated September 13, 1997. He retains the recall rights provided in the collective agreement but only with respect to the position of sleep-over person in Hummingbird House. ~ated this n.d day of April, 2001. C1.l_l!tJ ~ oretta Mikus