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HomeMy WebLinkAbout2000-1252.Union.01-03-28 Decision ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE: (416) 326-1396 GSB #1252/00 OPSEU#00U148, 00U149, 00U150 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer BEFORE Richard Brown Vice Chair FOR THE David Wright, Counsel GRIEVOR Ryder, Wright, Blair & Doyle Barristers and Solicitors FOR THE Len Marvy, Counsel EMPLOYER Legal Services Branch Management Board Secretariat HEARING March 19, 2001. 2 DECISION This union grievance is one of a series arising from the impending opening of the Central North Correctional Centre (CNCC) in Penetanguishene. The government has issued a request for proposals (RFP) inviting bids from private- sector entities wishing to operate this new facility. The grievance alleges the RFP will not adequately protect the seniority rights of employees who elect to accept employment with the successful bidder. I The crux of the dispute is the application of OPS seniority to promotions and layoffs in the receiving employer’s workplace. The parties differ over the interpretation of article 6C.3.4 of Appendix 18 to the collective agreement which states: Such job offers shall be at a salary of at least 85% of the respective employee's weekly salary at the time of the issuance of the RFP and shall recognize the service and seniority in the Ontario Public Service (OPS) of each employee for the purpose of qualification for vacation, benefits (except pension), layoff, job competition, severance and termination payments to the extent that they are provided in the proponent's workplace. The dimensions of the dispute are best understood by distinguishing between two categories of bidders: (1) those without a seniority system applicable to the CNCC site; and (2) those with a seniority system which does apply to this location. Most non-union employers would fall in the first category. The typical employer in the second category would be party to a collective agreement whose scope clause includes the site in question. Counsel for the union does not see any difference in the way article 6C.3.4 applies to these two categories of bidders, but employer counsel does. 3 A bidder in the first category would not be under any legal requirement to take seniority into account when selecting employees for promotion and layoff, unless the receiving employer accedes to an obligation of this sort as a condition of submitting its bid. The union contended article 6C.3.4 obliges the Ministry to impose such a condition through the RFP. Counsel submitted the successful bidder must undertake to recognize the OPS seniority of employees hired under the RFP process. According to this line of argument, all employees would be ranked according to seniority. Those hired in the RFP process (hereafter “RFP employees”) would be entitled to utilize their seniority, not only when vying with one another to avoid a layoff or to win a promotion, but also when competing with those hired outside the RFP process (hereafter “non- RFP employees”). In the context of job competitions, an RFP employee would receive preference over any more junior employee so long as the two were relatively equal in other relevant respects. As to layoffs, so long as an RFP employee was able to do the work required, he or she would be entitled to preference over any more junior employee. Counsel for the union described these entitlements as being among the “core” elements of seniority protection. While noting article 6C.3.4 does not entitle non-RFP employees to any preference based upon seniority, counsel suggested the receiving employer would be free to confer upon them the same seniority rights as would be enjoyed by their RFP counterparts. The employer’s primary position is that the Ministry is not obligated to require a bidder in the first category, without an applicable seniority system, to take account of OPS seniority in relation to promotions or layoffs. In the alternative, if I were to decide article 6C.3.4 mandates consideration of 4 seniority, the employer urged me to conclude OPS seniority has a narrower range of application than the union suggested. In particular, counsel submitted RFP employees may utilize their OPS seniority only when vying with one another to avoid a layoff or to win a promotion, not when competing with non- RFP employees. Employer counsel elaborated upon this limitation in the following passage from a letter, dated March 6, 2001, to counsel opposite: Layoff: Years of OPS service will count as qualification for order of layoff only vis-à-vis other ex-OPS employees who accepted job offers as part of the RFP. (For example, where only 1 of 3 ex-OPS-RFP employees are to be laid-off the least senior would be chosen.) Competition: Years of OPS service will count as considered in competitions only vis-à- vis other ex-OPS employees who accepted job offers as part of the RFP. (For example, where two ex-OPS-RFP employees are competing for the same position, where they are “relatively equal” in skills and qualifications, then their ex-OPS seniority will be determinative.) Counsel for the employer conceded the word “service” in this passage should be replaced by the word “seniority.” The second category of bidders is comprised of those with a seniority system applicable to the workplace in question. As already noted, the typical employer in this category would be party to a collective agreement whose scope clause included the CNCC site. Counsel for the union contended article 6C.3.4 obliges the employer to ensure such a bidder undertakes to offer employees at least the same degree of protection based upon seniority as counsel claimed must be provided by a receiving employer without a collective agreement. 5 Collective agreements typically do require management to take seniority into account when selecting employees for layoff or promotion. However, a typical collective agreement would recognize only seniority acquired with the signatory employer and not OPS seniority. Counsel for the union argued a prospective bidder, bound by such an agreement, would not be qualified to submit a bid unless the agreement was amended to give credit for OPS seniority. Counsel acknowledged an amendment of this sort would require the consent of the union party to the agreement. Putting the argument in the parlance of labour relations, counsel said article 6C.3.4 required that RFP employees be “dove- tailed” with other members of the workforce. Counsel for the employer submitted article 6C.3.4 permits a bidder with a collective agreement to apply it to RFP employees without amendment. This approach typically would result in RFP employees being “end-tailed”-- i.e. being ranked on the seniority list below anyone hired by the receiving employer before they were, but ahead of anyone hired after them. Under this approach, RFP employees would be able to assert their OPS seniority when vying with one another, and they would have seniority preference over anyone hired after them. II Article 6C.3.4 lies at the heart of this dispute. This provision is identical to the second sentence of article 5.3. Both of these provisions deal with the transfer of services through a tendering process. Article 5.3 was interpreted in two recent 6 decisions of this board in another case heard by Vice-Chair Leighton: (1) OPSEU and Ministry of Community and Social Services, File 0447/00, decision dated December 6, 2000; and (2) OPSEU and Ministry of Community and Social Services, File 0447/00, decision dated March 20, 2001. The second Leighton decision was issued the day after the hearing in this case and was the subject of submissions made during a conference call on March 23. Both decisions addressed the application of article 5.3 to a receiving employer without a seniority system applicable to the workplace in question. Union and employer counsel in the instant case agree these decisions do not address the scenario of a successful bidder with an applicable collective agreement. The employer’s primary position about bidders without a seniority system was rejected by Vice-Chair Leighton in her first decision. She held article 5.3 requires the employer to ensure a receiving employer undertake to recognize the OPS seniority of RFP employees for the purpose of layoffs and job competitions. Ms. Leighton rejected the employer’s alternative position in her second decision. In relation to job competitions, she held the RFP must require that “a ‘relatively equal’ clause be included in the job offer” (page 8). She also concluded job offers must include a term of employment saying “the most junior employee is laid off first--provided the more senior person can do the work” (page 8). She expressly rejected the employer’s suggestion that RFP employees would be entitled to recognition of OPS seniority only vis-à-vis one another, and not vis-à-vis non-RFP employees. By saying that seniority rights had to be included in offers of employment made to RFP employees, Vice- Chair Leighton implicitly acknowledged that Appendix 18 does not require a receiving employer to confer seniority rights upon non-RFP employees. 7 Counsel for the union urged me to follow the two Leighton decisions, whereas employer counsel submitted they should not be followed. In Blake and Toronto Area Transit Operating Authority, File No. 1276/87, dated May 3, 1988 (Shime), the then chair of this board held one panel must follow a decision by another panel, unless the earlier ruling is based upon a “manifest error” and there are “exceptional circumstances” justifying a fresh determination of the issue. Contending neither of the criteria established in Blake are met in the case at hand, counsel for the union contended I must follow Vice-Chair Leighton’s lead. Employer counsel submitted both criteria are met. He also suggested I should not apply a previous decision if I am persuaded it is manifestly wrong, regardless of the existence of exceptional circumstances. III Did Vice-Chair Leighton make a manifest error in rejecting the employer’s primary position about the first category of bidders -- i.e. those without a seniority system applicable to the CNCC site? I begin my consideration of this issue by recounting the historical backdrop. The precursor to Appendix 18 of the collective agreement is Appendix 9. Under paragraph 1(b) of Appendix 9, certain financial benefits were available to an employee who rejected an offer of employment which did not permit seniority to be “carried over to the new employer.” In OPSEU and Ministry of Finance, File 0967/98, dated June 17, 1999 (Dissanayake), the receiving employer operated union-free and offered no recognition of OPS 8 seniority. Employer counsel argued employees who rejected job offers were not entitled to the benefits in question because “the concept of seniority was foreign to and inconsistent with non-union shops” (page 15). Rejecting this argument, Vice-Chair Dissanayake held the provision relating to the carry- over of seniority applied not only to receiving employers with a seniority system but also to those without. His decision formed part of the context in which Appendix 18 was negotiated. Like paragraph 1(b) of Appendix 9, article 6C.3.4 of Appendix 18 deals with the carry-over of OPS seniority. The latter provision contains a phrase not found in the former: “to the extent they are provided in the proponent’s workplace.” Employer counsel contended these words distinguish among employers on the basis of whether a seniority system is already in place. Conceding the wording is not free of ambiguity, counsel urged me to conclude “they” refers back to “service and seniority” in relation to “vacation, benefits (except pension), layoff, job competition, severance and termination payments.” On this interpretation, an employee need be credited with OPS seniority for the purpose of layoff only if the bidder’s practice is to take seniority into account when deciding whom to lay off. Seniority would be treated in the same way in relation to job competitions. Counsel for the union argued “they” refers to the immediately preceding words “severance and termination payments.” Counsel suggested these payments were singled out for special treatment because of the unusual character of such pay in the OPS. For example, severance and termination pay is owing, in some circumstances, to an employee who resigns. According to this 9 line of argument, the qualifying phrase at the end of article 6C.3.4 merely indicates RFP employees have no entitlement to severance and termination pay in a scenario where the receiving employer would not provide it to other members of the workforce. To bolster management’s interpretation, employer counsel referred me to article 6.1.1 which repeats the relevant language from article 6C.3.4 with one notable addition. Article 6 applies to negotiated transfers of services, whereas article 6C (like article 5) deals with transfers accomplished through tendering. The relevant portion of article 6.1.1 states: For all Schedule B transfers, excluding those covered by Article 6.3, the employer will propose in negotiations with the receiving employer that job offers shall be at a salary of at least 100% of the respective employee's weekly salary at the time of the transfer and recognize the service and seniority in the Ontario Public Service (OPS) of each employee for the purpose of qualification for vacation, benefits (except pension), layoff and job competition, severance and termination payments to the extent that they are provided in the proponent's workplace or if none, the OPS ...(emphasis added) The words in italics are not found in article 6C.3.4. Based upon the premise that all workplaces have vacations, benefits, layoffs and job competitions, employer counsel argued “if none” cannot refer to these items alone because they exist everywhere. According to this line of argument, logic indicates “if none” must refer to “service and seniority.” As “they” has the same point of reference as “if none”, “they” must also refer to “service and seniority.” This argument glosses over the fact that the OPS variety of severance and termination pay is not commonly found elsewhere. Mention has already 10 been made of the availability of such pay in the context of resignations. In addition, entitlement to this sort of pay is not contingent upon an employee receiving inadequate notice of termination. In this sense, severance and termination pay in the OPS is very different than the pay in lieu of notice available to all employees under the Employment Standards Act. As the OPS type of severance and termination pay is not common place, there is nothing illogical about reading both “if none” and “they” as referring to severance and termination pay. On a literal interpretation of article 6C.3.4, it is not obvious that the qualifying phrase “to the extent they are provided in the proponent’s workplace” carries the meaning suggested by the employer. The phrase is said by employer counsel to mean to the extent service and seniority are recognized by the receiving employer for the purposes specified in the article. To achieve this construction, he reads “they” as referring back not merely to “service and seniority” but more particularly to these concepts as applied for the purposes listed earlier in the article. This is not the obvious meaning of “they” unaccompanied by any further mention of purpose. Nor is it obvious that “they” is a reference to the utilization of service and seniority in the receiving employer’s workplace. If “they” refers back to service and seniority in any sense, the correct grammatical construction would be as a reference to “the service and seniority in the Ontario Public Service (OPS) of each employee” because this is the only mention of service and seniority in article 6C.3.4. The grammatically correct construction would produce the circular proposition that OPS service and seniority must be recognized by a receiving employer who 11 gives credit for OPS service and seniority. The union’s interpretation avoids this circularity without offending the rules of grammar. Employer counsel argued the union’s interpretation should be rejected because it would create an obligation to recognize seniority without specifying the details of the seniority system required. Counsel suggested acceptance of the union’s position would propel this board into the realm of interest arbitration by requiring it to determine the details of the seniority system contemplated by article 6C.3.4. Counsel for the union contended there would be no need for interest arbitration if article 6C.3.4 safeguards no more than the core elements of a seniority system. In support of the argument that the protection afforded by this provision does not extend beyond these elements, union counsel relies upon my decision in OPSEU and Ministry of Health, File 1615/99, dated January 31, 2000. In that case, ambulance services were transferred from the provincial government to a public hospital. Paramedics performing these services in the employ of the hospital would be governed by the collective agreement for the office and clerical unit. That agreement had been amended to recognize the OPS seniority of paramedics transferring to the new employer with only one exception: in the event of a layoff, they could not utilize such seniority to bump into a job outside the paramedic group. The union argued this arrangement fell short of recognizing OPS seniority within the meaning of article 6 of Appendix 18. Rejecting this argument, I wrote: The union’s comparison of the seniority system in the OPS with the one at Hotel Dieu rests upon the tacit premise that section 6.6 allows an employee to reject a job offer, without foregoing surplus benefits, 12 whenever a receiving employer’s seniority system provides less of a safeguard against layoff than the OPS system, even though seniority acquired by an employee in the OPS could be used to obtain whatever protection generally exists within the new employer’s seniority system. Is this premise correct? Seniority systems differ in the degree of protection afforded against layoff in a number of ways. Under some systems, an employee may invoke seniority to bump into any position in the bargaining unit which the individual is qualified to hold. Other systems allow bumping into only a subset of jobs in the unit, with one system excluding more jobs than the next. Some systems impose geographical limits on bumping, with the severity of the restriction varying from one system to the next, whereas others impose no such limit at all. Some permit unlimited chain bumping, while others allow only a limited number of bumps. Other variations also exist. How does Appendix 18 treat differing seniority systems? In my view, the authors of Appendix 18 almost certainly did not intend entitlement to surplus benefits to turn upon a detailed comparison of the OPS seniority system with the system of the receiving employer. The contrary conclusion would give rise to extensive litigation posing a number of questions for which Appendix 18 offers no answer. How is the degree of protection afforded by any aspect of a seniority system to be measured? For example, should the yardstick be the number of classifications into which bumping is permitted or the total number of employees in those classifications? If one aspect of a new employer’s seniority system provides less job security than the system in OPS, but another aspect offers more, how are these two components to be weighted relative to one another in arriving at an overall comparison of protection under these two systems. The absence of any reference to these very complex issues in Appendix 18 strongly suggests negotiators viewed them as matters that should be ignored. This analysis leads me to reject the union’s contention that seniority has not been carried over within the meaning of article 6.6 because former employees of the ministry have less protection against layoff than they enjoyed in the OPS. The seniority system at Hotel Dieu cannot be called into question by comparing it to the system in the OPS. (pages 8 and 9) 13 This ruling was characterized by counsel for the union as holding that Appendix 18 does not protect more than the core elements of seniority. This is an apt characterization. The decision says nothing about whether these central elements must be provided, but it does indicate more than these elements is not required. The case dealt with a receiving employer whose workplace was governed by a collective agreement, but the principle there established applies by analogy to a bidder without an applicable collective agreement. The union’s position, founded upon the core of seniority, does not constitute an invitation for this board to engage in interest arbitration. The jurisdiction of an interest arbitrator is unfettered by any contractual limitation. Such an arbitrator could award a seniority system falling at any point on the continuum between a basic one and a system with all of the features found in article 20 of the instant collective agreement. The jurisdiction of this board is limited by article 6C.3.4 which the union concedes protects only the elements central to a system of seniority. I recognize the union’s reading of article 6C.3.4 does not provide the sort of bright-line test which would foreclose future litigation. The core standard proposed by the union leaves room for debate as to whether a particular system of seniority passes muster. There is nothing unusual about disputes of this sort. The language found in collective agreements often produces disputation about how an imprecise standard applies to specific facts. The union’s interpretation should not be rejected merely because it lacks precision. 14 Based upon the foregoing analysis, I conclude Vice-Chair Leighton did not commit a manifest error in deciding to reject the employer’s primary position about a receiving employer without an applicable seniority system. She held Appendix 18 obliges the employer to require such a bidder to recognize OPS seniority for the purpose of layoffs and job competitions. I am bound to follow her ruling. IV Having decided article 6C.3.4 mandates the recognition of OPS seniority by a receiving employer who otherwise would not have a seniority system, I turn to consider the degree of seniority protection provided by this article. The parties placed before me two issues relating this subject. The first involves a receiving employer who is not party to a collective agreement. In this context, the employer argued article 6C.3.4 entitles RFP employees to assert seniority rights only in relation to one another, whereas the union contended they also may assert these rights in relation to non-RFP employees. In her second decision, Vice-Chair Leighton decided this issue in the union’s favour. The concept of seniority necessarily entails the definition of what might be called a seniority district--i.e. the range of positions to which the seniority rights of an individual apply in the context of promotion or layoff. By seeking to prevent RFP employees from exercising their rights against non-RFP employees, the employer in effect proposes a seniority district comprised exclusively of those hired through the RFP process. Does this district comply with article 6C.3.4? 15 In the realm of collective bargaining, seniority districts generally are delineated by reference to occupation and location. A seniority district may include all of the jobs and sites falling within a bargaining unit. Alternatively, this district may have an occupational or geographic range more limited than the unit governed by a collective agreement. Whatever the exact delineation of a seniority district, in the world of collective bargaining, the seniority rights of an individual apply to all employees within a specific geographic and occupational range, regardless of the process whereby they were hired. The employer seeks to restrict the exercise of seniority rights in a manner which is foreign to normal industrial relations practice in this country. Under management’s proposal, an RFP employee would be unable to assert his or her OPS seniority against a non-RFP employee performing the same job at the same place. As this would amount to a denial of the “core” protection normally provided by seniority rights, I conclude Vice-Chair Leighton did not commit a manifest error in rejecting the employer’s proposal as contravening Appendix 18. Following the second Leighton decision, I decline to accept the seniority district implicitly proposed by the employer. The union did not propose any specific alternative. Accordingly, I refrain from determining what district would be appropriate in the instant case. My decision in the Ministry of Health case, cited above, demonstrates Appendix 18 does not in every case require the seniority district to include all members of the receiving employer’s workforce. In the particular circumstances of that case, I held article 6 was not offended 16 when the receiving hospital established a seniority district for paramedics which was limited to the paramedical group. One final comment on this issue. Counsel for the employer argued this board has no jurisdiction to issue a ruling which affects the employment contracts of non-RFP employees. In my view, this argument misses the point. The employer and union are free to include in their collective agreement whatever provision they wish about the privatization of work. This board has jurisdiction to enforce any term upon which they agree, including a provision which bars a bid from a receiving employer because it is precluded by existing contracts of employment from recognizing OPS seniority. The enforcement of such a provision does not alter employment contracts elsewhere, even though it may provide an incentive for the parties to those contracts to amend them. V The second question about the degree of seniority protection provided by article 6C.3.4 was not addressed by Vice-Chair Leighton in either of her decisions. How does article 6C.3.4 apply to a receiving employer with a collective agreement whose scope clause includes the location where work to be transferred from the OPS will be performed? Counsel for the union argued a prospective bidder, bound by a collective agreement of this sort, would not be qualified to submit a bid unless the agreement was amended to give credit for OPS seniority through a process of dove-tailing. Employer counsel contended article 6C.3.4 does not bar a bidder who proposes to apply its collective agreement to RFP employees, even if this would result in them being end-tailed. 17 End-tailing would rank all RFP employees, including those with many year of OPS seniority, behind all non-RFP employee hired by the receiving employer before services are transferred from the OPS, including anyone engaged in the days immediately preceding the transfer. Under this arrangement, an RFP employee would be unable to utilize OPS seniority in relation to a non-RFP co-worker even though they perform the same job at the same place. I have already determined such a limitation on seniority violates article 6C.3.4 in the case of a bidder who is not party to a collective agreement. Article 6C does not explicitly distinguish between bidders who are bound by a collective agreement and those who are not. The same is true of article 5. These two articles deal with transfers accomplished by means of tendering. Both differ from article 6, relating to negotiated transfers, which does treat receiving employers with an applicable agreement differently than those without. Article 6.1 requires the Crown, during negotiations with receiving employers, to propose terms of employment which include recognition of OPS seniority. Article 6.3 exempts from this requirement almost all receiving employers with an existing collective agreement. (The sole exception to this exemption is a public hospital receiving services from a psychiatric hospital.) The general rule under article 6 is the Crown need not negotiate for recognition of OPS seniority where a collective agreement is in effect. Counsel for the union contends the express exemption in article 6 relating to collective agreements, coupled with the absence any corresponding exemption in article 6C, indicates an intention on the part of negotiators to treat all bidders in the 18 same way under the latter article, regardless of the existence of a collective agreement. I agree. Based upon the foregoing analysis, I conclude article 6C.3.4 precludes end-tailing. My conclusion does not provide a complete guide as to how this article governs seniority in the context of a receiving employer with a collective agreement. As already noted, the concept of seniority necessarily entails the definition of a seniority district. There remains to be determined what delineation of such a district would comply with article 6C.3.4. Appendix 18 does not in every case require the seniority district to 19 be co-extensive with the bargaining unit, as illustrated by my ruling in the Ministry of Health case. As counsel made no submissions as to what seniority district would suffice in the instant case, I make no comment on that matter. Dated at Toronto, this 28th day of March, 2001. Richard Brown, Vice-Chair.