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HomeMy WebLinkAbout1988-1282.Hall et al.90-06-26'~-~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO ';~ GRIEVANCE . C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET* WEST, SUITE 2700, TORONTO, ONTARK), MSG IZ8 TELEPHoNE/TELEPHONE: (416)326-~3,98 180, RUE DUNDAS OUEST, BUREAU 2~, TORONTO (ONTARIO), MS~ ~Z8 FAC~MtLE/T~L~COPlE .* (4~6) 226-~396 1282/88 IN THE ~iATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Hall et al) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer - and - BEFORE: P.M. Epstein Vice-Chairperson J. McManus Member H. Roberts Member FOR THE H. Law GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE M. Milich EMPLOYER: Staff Relations Officer Human Resources Secretariat Management Board of Cabinet HEARING: April 27, 1989 DECISION In this matter, three grievances were heard together. Ail concerned seniority rights of seasonal employees and all involved an interpretation of S. 3.17 of the Collective Agreement. The parties entered into an Agreed Statement of Facts as STATEMENT OF FACT Hall et al and the Ministry of Natural Resources GSB #;282/88 1. At the time of grievances, the grievors were employed by the Ministry in the unclassified service under Group 2 contracts at the Thunder Bay Forest Nursery. 2. Ms. Carole Hall was employed 'as an Assistant Nursery Technician and was classified as ~ Resource Technician 1. 3. Ms. Maureen Martin was ~also employed as an Assistant Nursery Technician and was classified as a Resource Technician t. 4. Mr. Richard Shewdack was employed as a Nursery Technician with a classification of Resource Technician 2. 5. The grievors-are grieving that for the period October 3, 1988 to November 4, 1988 they should have been employed as seasonal employees, i.e., Group 3 unclassified employees, pursuant to Article 3 of the Collective Agreement, instead of Group 2 unclassified employees. 6. The employer's group designations are pursuant to S. 6 of Regulation 881 to the Public Service Act. 7. Ms. Hal! and Ms. Martin were employed as seasonal employees (Group 3 unclassified employees) from March 28, 1988 to August 12, 1988, at which time their contract of employment terminated. 8. During this period, they were employed as AssiStant Nursery Technicians and were classified as Resource Technician 1. 9. Both grievors had completed their probationary period as seasonal employees in accordance with Article 3.18 of the Collective Agreement. 10. Mr. Shewdack was employed as a seasonal employee (Group 3 unclassified employees) from June 6, 1988 to September 2, 1988,' at which time his contract of employment terminated. 11. He was employed as a Nursery Technician classified as a Resource Technician 2. 12. As this was ~Lr. Shewdack's first period of seasonal employment, he had not completed his probationary period. 13. The prime responsibility of the grievors is quality assessment during the spring~ and summer harvest and transplanting of seedlings by private contractors and. Ministry personnel ensuring proper records are obtained and Ministry standards are maintained. In addition, they were involved in the taking of inventory at the nursery, seeding, weeding and related work. i4. Mr. Shewdack, as the Nursery Technician, had supervisory duties and was liaison with the contractors. 15. During this period, the grievorsworked full time, forty hours per week. 16. The grievors were re-employed as Group 2 unclassified employees for the period October 3, 1988 to November 4, 1988. 17. From October 3, 1988 to October 7, 1988, all three worked for the Technology Development .Unit as Resource Technicians 1. The duties they performed were not the same as they had in the Nursery. 18. From October 11, 1988 to November 4, 1988, Ms. Hall and Ms. Martin performed quality assessment duties as Assistant Nursery Technicians for the fall harvest. '19. Mr. Shewdack performed the duties of a Nursery Technician for the fall harvest. Ail three parties grieved as follows: "I grieve that I am improperly hired as Group 2 (Casual)." At a Stage 2 grievance meeting, the Ministry responded, .inter alia, as follows: "As the work performed October 3, 1988 to November 4, 1988 was less than eight consecutive weeks, I have found no violation of the Collective Agreement." The question for us was whether, the Ministry was correct in that response. The parties have submitted various cases to assist us in our deliberations, notably, Union (1623/87), Furniss (602/86), Macdonald (1937/87); Northern Telecom (198121L.A.C.3rd105), UEW and Tung Sol (1964 15 L.A.C.161). .Although these cases are helpful, the parties were not able to direct us to any previous Board cases which determine the precise issue in question, that is whether two periods of employment under two different contracts of employment which are separated by an interval of time can be considered, to be a season for the purposes of a Collective Agreement. While we might be prepared to find that the grievors may well have performed the same job as Assistant Nursery Technician or Nursery Technician, and while they appear to have .been engaged in recurring positions, the problem is that the second period of employment was less than the eight consecutive weeks as is required by S. 3.17 of the Collective Agreement. In essence, the grievors suggest that the second period of employment can be "tacked" to the first period in order to fit the grievors within the seniority rights granted by S. 3.19.1 of the Collective Agreement. While the Board has some sympathy With this argument, with some regret, we find that to interpret S. 3.17 in such a fashion is to strain the language of the Collective Agreement beyond its reasonable interpretation. It was.open to the Union and the employer to negotiate the wording of the Collective Agreement in a manner that was satisfactory for both. While we are charged with the responsibility ofinterpreting the Collective Agreement, we cannot and should not strain to create a new agreement for the parties. In our view, the phrase "period of employment" as used in S. 3.17 means one single unbroken period of time during which the employee was continually employed in the annual recurring full-time position~ While we recognize that it may have 'become the mutual intent of the parties for this grievance to maximize job security of seasonal employees (for example, see Appendix "A", which, was Exhibit 5 to this Hearing) we simply cannot find that the parties to the Collective Agreement were.successful in drafting. S. 3.17 to accomplish that end. Therefore, in view of the fact that the second period of employment for these grievors did not meet the minimum requirements of eight consecutive weeks, the grievance must be dismissed. DATED at Toronto, Ontario, this 26th day of June , 1990. P.M. EPSTEIN~ VICE-CHAIRPERSON "I DIS.SENT" (Dissent attached) J. MCMANUS, MEMBER Hf ROBERTS, MEMBER ~c ~~y ~c~ ~ese pra~sj ~ a ~e n~ of DISSENT I must dissent from 'the decision of the majority in this matter. It was undisputed that it was the mutual intent of the parties to maximize the job security guarantees for seasonal employees in the collective agreement (see appendix A). This would include the flexibility to characterize the grievors.' layoff from employment in between the spring and fall seasons as inactive employment but continuous service,'consistent.with the arbitral presumption in this regard. Accordingly, both the spring and fall periods of active employment would belong to the same "annually recurring position" as negotiated by the parties. Seen in this light, there is nothing in the collective agreement to restriot the parties' mutual desire to maximize job security in this manner. Article 3.17 of the collective agreement only requires, at minimum, that there be at least eight consecutive weeks in.each annual recurring full time position. It does not require that all weeks of active employment within a position be consecutive, but only eight such weeks. A position is therefore only defined and limited by the fact that it is annually recurring, consists of a particular bundle of duties, and has at least eight Consecutive weeks of active employment. I would not have found that the Union's interpretation unreasonably strained the language of the collective agreement, but rather reflected both the spirit and intent of the parties' mutual bargain.