Loading...
HomeMy WebLinkAbout1990-0999.Roy & Roy.91-05-08 .. ,l (~_r . ,- , I~~ - / ONTARIO EMPLOYÉS DE LA COUAONNE CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO. ONTARIO. M5G IZ8 TELEPHONEITÉLÉPHONE: (416) 326-1388 180. RUE DUNDAS OUEST, BIJI'lEAU 2100, TORONTO (ONTARrO). M5G 1Z8 FACsrMrLEITeLÉCOPIE: (416) 326-1396 999/90,1000/90 IN THE MATTER OF AN ARBITRATrON Under HE CROWN BHPLOYEES COLLECTIVE BARGAINrNG ACT Before THE GRrEVANCB SBTTLBHENT BOARD BBTWEEN OPSEU (Roy/Roy) Grievor - and - The Crown in Right·of Ontario (Teachers Superannuation commission) Employer BEFORE: G. simmons Vice-Chairperson I. Thomson Member R. Scott Member paR THE P. Lukasiewicz GRIBVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors POR TilE A. P. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrence, Stevenson & Mayer Barristers & Solicitors BBAR:ING: November 14, 1990 February 8, 1991 April 10, 1991 . I: I , ... , , -~ ~ 2 Originally there were three grievor::;. However, Z,!s. Nicole coté was unavailable due to surgery and t:he Union requE~sted tha.t her grievance be adjourned because counsE~l was unable to receive instructions from her. The grievors claim that the Employer has violated Appendix A, page 47 of the Collecti ve Agreement by ]10t paying the required bonus. They seek to have the Employer COItlply with the Collective' Agreement and pay ,the appropriate bonus from the date it was first due wi th interest. The pertinent provi~¡don on page 4: 7 of the Collective Agreement reacts as follows: An employee who occupies a Designated Position, . as determined by the· Commission lihich requires the use of the second language shall be paid a second language premium of four percent (4%) of salary effective 1 January 1989. Such premium to be applied to salary rates as shown, effective 01-Jan-89 for such Designated positions. The Employer' spas i tion throughout has bElen that the Collect i VE~ Agreement specifies that a second language premium will be paid to those who occupy Designated Positions. The!se Designated positions are determined by the Commission and si~ce the grievors' positions had not been designated, they were not entitled to the premium. In 1990 the Teachers I Superannuation commission name was changeèl to Teachers' Pension Plan Board. The facts are as follows. The two 'grievors are bilingual. They responded to an advertisement in Le Voyageur which appeared. in November, 1987, seeking applicants who were bilingual I .. ) . -, . .~~ .' 81 3 (Exhibit 6). Mr. Lucien Roy applied for the position of Bilingual Benefits Processor and received an offer stating that he would commence work on January 25, 1988 (Exhibit 5) . Mr. Marcel Roy likewise received an offer for 'the position of Bilingual Benefits Processor which commenced on January 3, 1989 (Exhibit 7) . It is acknowledged that the grievors were given an indication by the Commission that their French language skills would be used sometime in the future. There is no doubt but that the grievors entertained expectations that such would be the case. The use of French language skills was contemplated by the passage of the French Language Services Act, 1986. The Act defines "servicell as: Any service or procedure that is provided to the public by a government agency or institution of the legislature and includes all communications for that purpose. ' We believe that it is fair to say that the Commission anticipated a surge in oral requests as well as correspondence to be carried out in the French language. The Commission miscalculated the amount of communication that it expected to receive in French. We were informed that a total of 1.5 percent of all work was communicated in the French language. We were further informed that there are approximately sixty Benefit Processors so instead of having the work spread over a number of processors, it was decided to coordinate this work to be done by one person. The Board was informed that the first Collective Agreement between the parties which ran from 1986 through 1988 contained no reference concerning designated positions. ç 4 The grievors continued to enquire whem their French languagl;; skills would be put to use, but their supervisor informed them that, he did not know. Finally, not being able to receive any satisfactory explanation the grievors filed their grievance on June 8, 1990. The Union claims that the l~mployer is required to pay thE~ grievors the four percent bilingual bonus effective January 1, 1989, pursuant to the above extract from th,e Coliective Agreement. The Union advanced its position in a tWO-fold manner. The first: is based on the hiring of the grievors and the positions for which they were actually hired. The second aspect deals with thE! negotiations that transpired in June and July, 1989, that brought, about the inclusion of the' ,above porti.on of the Colle9tive Agreément. Dealing with the first aspect of the Union's case first, we were informed through evidence that the grievors were hired with the expectation that they would be using a second language in their work at some future time. They were hired because they are bilingual and when the Collective Agreement states that they are to receive a premium for the bilingual position which they occupy, then it is unfair and unreasonable to deny them the premium bonus. While the Employer may have decided to car:ry out its translation services in a centralized manner and thereby denying the grievors the right to use their French language on a day-to-day basis, they nevertheless occupy positions that require the use of French language, that was what they were hired f.:>r, and was what they I . I ,', \ -<!J 5 applied for. The positions having already been created and filled by the grievors, it is unreasonable for the Employer to now deny them their entitlement to the premiums. The Employer pointed out that the positions of the grievors for which they applied, were under a very different Collective Agreement and there was compensation for use of the language which was part of the rate that existed then. They were told when they applied for the positions that there was no use for the French language at that time and that it was not known when and if the French language would be used by them. According to the Employer, they accepted their positions on that basis. Furthermore, the ,.' Employer argued that while the Employer may have miscalculated the . extent of the usage of the French language, the fact remains that the work was not there. While the Employer may plan for certain eventualities if these plans do not materialize then the Employer ought to be free to arrange the work accordingly. The other aspect that the Union relies on in support of its position is based on the negotiations that took place in June and July in 1989 which brought about the above extract of the Collective Agreement. This aspect of the case took somewhat of an unusual course through these proceedings. The Union initially called the two grievors to give evidence. The Employer then called Ms. Tonia Parascevas. Ms. Parascevas was questioned in some detail about the negotiation process that transpired which led to the above extract being included in the Collective Agreement. On day two of the hearing, the Union sought to call reply evidence to , ; . ~ .... 6 address the issue of the negotiations from the Union I s perspective. The Union had not anticipated that the issue of negotiations would be raised by the Employer and, therefc)re, wished to presen't -.. -- ) ~~_. . 4 7 of salary (Exhibit IO). The parties then met on June 6, 7, 12, and 13, 1989, at which time negotiations occurred. The Employer replied to this demand on June 6 (Exhibit 11) wherein its òffer was similar to that which eventually appeared in the Collective Agreement. However, because there was an understanding between the parties that they would not get into money items until the rest of the negotiations had been completed, they did not initially talk about this premium until June 12 and 13 when they devoted their time in addressinq money matters. In answer to the question, UDo you recall discussions concerning the bilingual bonus?" Mr. Griffin's response was that "There was already an identifiable group who had been hired through advertisements and there were 7, 8,1 or 9 bilingual employees--so ~he cost impact--four percent-- . was not tremendous." It was Mr~ Griffin's understandinq that the employees who had been hired with French language skills would receive the bonus, however, he admitted in cross-examination that Ms. Keene, a member of the management negotiation team, probably used the word "designation" although he was vague, in his responses to the contents of Ms. Keene's contribution at the negotiation table. Ms. Joanne Tiahnybok (nee Coté) became president of the local in 1989 and was a member of the negotiating committee. It was her evidence that she had the impression that employees in bilingual positions or hired for bilingual positions would be receiving the four percent bonus and after the Collective Agreement was ratified it would be up to the Employer to designate future employees. -~ . " 8 A memo dated July 18, 1989, concerning "Designated Positions" was issued by Ms. Keene and Ms. Tiahnybok received a copy on July 20, 1989. The effect of this memo ~las a notification that: seven .~ - , '. 9 Manager, Human Resources who will submit it to the Director for approval. Appointment to a designated position will be subject to the competition process which may or may not be restricted to a department and/or section. A restricted area of search will be dependent on whether the position is vacant. Appointments to all future designated positions are subject to a minimum French language skills requirement, as tested, at the advanced or superior level of proficiency, for both oral and written skills. These positions will remain vacant until this requirement has been met. Ms. Tiahnybok was of the view that the above memorandum did not reflect what had transpired in negotiations but decided to wait until the next pay period to see who in fact actually received the bonus. When certain employees did not receive the bonus, Ms. ~iahnybok approached Ms. Gohm, Chief Steward, an~ discussed the matter. They concluded that the best way to deal with the matter was to file a grievance. The Collective Agreement indicates that it was signed on July 21, 1989. This was the day after Ms. Tiahnybok received Exhibit 13. It will be noted that the Employer argued strenuously that if Ms. Tiahnybok objected strenuously to the planned designations as set out in Ms. Keene's memorandum of July 18, she had an opportunity to raise the matter with the Employer before signing the COllective Agreement. However, Ms. Tiahnybok stated that this was all a new experience for her, having become president of the Union only recently, and that she was liaising with Ms. Gohm. Further, she did not contact Mr. Griffin who was now in Guelph and was simply learning what she had to do. Finally, Ms. Tiahnybok acknowledged ,. - . 10 in cross-examination that Ms. Keene used the word Ifdesignatedll but it was her impression that the employees who were then employed would receive the premium but new employ,ees hired in t;he future would be up to the Employer r s right to de~;ignate them. Ms. Irene Gohm, Chief Steward, was also a member of the Union bargaining committee. Ks. Gohm s'tated that she recalled the bonus being discussed on June 13 but it was a very brief discussion. She stated that Ms. Keene made very brief comments and because it wa:s not a contentious issue as to what the bilingual positions werle there was no need to discuss it further. It was at this point in the proceedings where the Employer raised its objection that Ms. parascevas had not been cross- examined on her statement made in evide:nce in, ·chief. It was Ms. Parascevas I evidence in chièf that' :onco' the Union had made it~; initial demands the Employer was prepared to offer a four percent premium with certain conditions that the Employer wished to implement. She stated that the Employer negotiating team caucused to decide on what conditions there ought to be. She further stated that the oondi tions were that the EmploYE!r retain the right to identify positions it wanted to be bilingual and that the Employer' would designate such positions. Further, that the Employer would expect to test all of the employees on their bilingual capabilities by a certified evaluator before paying thle bonus. And finally, that all designated positions would be pos~ted thereby fulfilling the posting article. Ms. parascevas was then asked, "Were the conditions communicated to the Union?" -, ¡ ,,-" ,.~ ~ 11 nYes--Marilyn Keene did it." "Were you -çhere?" "Yes." "How was it presented?" "During the negotiation meeting. And she explained it to Mr. Griffin." Upon reviewing my notes, Ms. Parascevas was asked in cross- examination if the conditions that had been set out by Ms. Keene were as stated above to which' Ms. Parascevas replied in the affirmative. She was not questioned further on the subject. We agree with counsel for the Employer that Ms. parascevas was not alerted to the intention of the Union that it was going to bring forward witnesses who would refute her testimony. The evidence of Ms. Gohm in relation to the July 18 ,memo repro~uced above was as follows: "Were there any items contained in that . document discussed in negotiat~ons?1I liThe only point of discussion was that future positions and designations of 'those positions would be the method that would be followed. II We agree with counsel for the Employer that had the union intended to pursue this avenue of questioning with Ms. Gohm then it was incumbent upon counsel for the Union to put Ms. parascevas on notice that witnesses would be testifying. and giving different views as to what was said, whereupon Ms. Parascevas would have had an opportunity to think more fully about the evidence she was giving. . . 1') .. In cross-examination, Ms. Gohm recalled Ms. Keene mentioninSf the word "designation" but it was only ,"vac;;rúely" that she recalled something being said about it. At first blush, it would appear that the parties were not ad idem on what they were negotiating. However, upon further consideration we believe that such was not: the case. It is true~ that the witnesses for the union held the bEll ief that the employees: currently on payroll during negotiations who had been hired as bilingual employees were entitled to the prE~mium. But the evidence of Ms. parascevas is clear that management explained to the Union negotiating committee that certain conditions would apply and we accept that evidence. Whether or not thE~ members of the union negotiating'committee were convinced that employees currently on - the payroll would be entitled to the prelILÌ um, we simply do not believe that they were listening closely to what was being described to them. This is supported by Exhibit 11, which was given to the Union negotiating committee Olll June 6 which was the first, full day of negotiations and was in response to the Union demand that had been presented in April. It is entitled "Wages" and reads in part as follows: An employee who occupies a Designat:ed Position, as determined by the Commission, which requires the use of a second language shall be paid a second language premium of four percent (4%) of salary retroactive to 1 January 1989. Such premium to be applied to salary rates for the Designated Position in effect after the retroactive 1989 increase has been applied to the salary rate in effect on 31 De,cember 1988. I -. ) -- "\ . 13 FOllowing the final day of negotiations, a Memorandum of Settlement was prepared by the Employer and sent to the Union where it was received on July 5, 1989, and signed by the Union negotiating members. On page 12 of that Memorandum of Settlement there appears the following An employee who occupies a Designated Position, as determined by the Commission, which requires the use of a second language shall be paid a second language premium of four percent (4%) of salary retroactive to 1 January 1989. Such premium to be applied to salary rates for such Designated Position in effect after the retroactive 1989 increase has been applied to the salary rate in effect on 31 December 1988. Further, , on July 18, 1989, Ms. Keene forwarded the Memorandum entitled "Designated Positions" to ~he Union which was received by : Ms. Tlahnybok on'July 20, 1989. This document clearly sets forth the positions that are to be designated'bilingual. It is to be noted that there was to be only one Benefits Counsellor position designated which clearly meant that at least one of the grievors was not going to have his position designated. The date shown on the Collective Agreement when it was signed was July 21, 1989. Mr. Griffin by this time had moved to the Guelph office and was no longer involved in the matter. Ms. Tiahnybok, on the other hand, did have an opportunity to intervene if she indeed felt that what was being put forward by the Employer did not comply with the understanding of the Union as to what was to transpire. It is indeed unfortunate that Ms. Tiahnybok was inexperienced and decided not to do anything and further that Mr. Griffin was not on the r !I . 14 scene in order that he could take whatevElr steps he deHmed to be appropriate. Nevertheless, we acc ~pt the evidence of Ms. Parascevas that the Employer representative, namely Ms. KeenE: , explained that there were to be conditions attached to th.e designating of bilingual positions and we accept that evidence: . The Union must accept whatever blame therl~ may be attached to not pursuing the matter when it clearly had an opportunity to do so through Ms. Tiahnybok. On the other hand, we believe that the Employer must also accept its share of the blame for creating certain expectations in the grievors and then not following through. There can be no doubt that the grievors were under the belief that they were hired to work in both English and Fr.ench and, therefore, use their bilingual skills. ' It is true that the workload did not increase to the poin·t that had been anticipated, but in its handling of this matter thl:a supervisory people just kept putting the grievors off when they were queried about when the grievors would be using their FrenC]l language skills. clearly, it is understandable that the grievors were experiencing enhanced frustration at what was taking place. Finally, the Employer argued that what we have here is an estoppel. By allowing the Employer to believe that its position on designated positions was clearly acceptEld by the Union then thEl grievors are estopped from pursuing their grievances because thE! Employer has been allowed to act to its detriment. In view of the~ results of this decision, the Board does not consider it necessary to address the estoppel issue. I ~, '.J' . ,.... I ''\ 15 Nevertheless, based on the evidence that was placed before us the Employer retained the right to determine what "designated positions" requiring the use of second language was to be. Neither of the qrievors' positions were designated and, accordingly, their grievances must be and are hereby dismissed. Dated at Kingston, Ontario this g,.h day of May , 1991. \ µ '7f C. Gordon Simmons I Vice chairperson I I -., I .~~ ..! \ ¡. T~on. Member . I Pf!:t~ . '~ R. Scot ,Member -