HomeMy WebLinkAbout1991-1235.Bryson et al.98-12-11 ONTARIO EMPLOYES DE LA COURONNE
cROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
SE'I-FLEMENT RI~GLEMENT
BOARD DES GRIEFS
~80 OUNOAS STREET WEE T, SUITE HO0, TORONTO ON MSG I Z8 TEI..EPHONE/'t~L~.PHONE : (41 ~) 32~-? 388
leO, RUE DUNDAS OUEST, BUREAU 800, TORONTO (ON) MSG IZ,~ FACSIMILE[T~.L~COPIE : (416) 326-1390
OSB# 1235/91, I635/91, '~2d6/91, '~822/91,3124/9I, 2339/92, 3749/92, 1765/95, 1956/95,1957/95,
1995/95, 2104/95, ? 147/95, 2 ! 48/95, 2149/95, 2184/95, 2186/95,2187/95, 2205/95, 22 ] 3/95,2246/95,
2267/95, 2269/95, 2296/95, 2315/95, 0106/96, 0123/96, 0689/96, 0884/96, 0885/96,0886/96, 0887/96,
0888/96, 0889/96, 0890/96, 1195/96, 1332/96
OPSEU# 9 ID551-555, 91F018, 91 H035, 92C012, 92B679, 92F889-890, 93C484, 95E581-583, 95E653-657,
96E649-652, 95D596-599, 96B045, 96B065, 96B067, 96B068, 96B 124-127, 96C [ l l, 96B 160-167, 96B 179,
96B181, 96B217, 96B267-274, 96B410-413, 96B425, 96B752, 96B863-869, 96B986-987, 96G070
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE B. ARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bryson et al)
Grievors
- an(] -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE Richard M. Brown Vice-Chair
FOR THE Cameron Walker
GRIEVORS Grievance Officer
Ontario Public Service Employees Union
-- FOR THE Lori Aselstine
EMPLOYER Staff Relations Officer, Human Resources Branch
Ministry of Natural Resources
HEARING December 11, 1998
The parties have agreed to consolidate eighty individual grievances.
Seventy-nine of these grievances are listed in Appendix A and concern only
a grievor's continuous service date. One of the grievances on this Iist was
filed by Richard Shalla. In the only grievance not on this list, GSB No.
1332/96, Mr. Shalla contends he was improperly laid off because the
employer used an incorrect continuous service date. All of the grievors
claim they were not given appropriate credit for employment in the public
service which occurred before they were appointed to the classified service.
In particular, they complain about the denial of credit for work preceding a
break in employment. The employer contends such credit was properly
withheld and the union does not disagree. An agreed statement of fact is
attached as Appendix B.
Each of the grievors obtained a position in the classified service by
bidding on a posted job and being selected as the successful applicant.
In the parlance of the parties, the grievors are "bid-ins". The crux of their
complaint is that they have been treated differently than employees who
obtained a'cl~assified position when their jobs were "rolled-over" into the
classified service. These employees are referred to as "rolI-overs". The "roll-
over" occurred as a result of a policy grievance, dated October 30, 1990,
contending the Ministry was "improperly treating a number of year-round
positions as seasonal." To resolve this grievance, the parties entered into a
memorandum of settlement which was made an order of the Board in GSB
No. 2 l 81/90, dated July 17, 1991. As well as assigning the disputed
__ positions to the classified service, the settlement granted each employee
"seniority accumulated under article 3.20.1 of the collective agreement." In
other words, these employees began their classified service with all seniority
previously accrued as seasonal employees. As seasonal employees, they had
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accrued seniority for seasonal work performed after January 1, 1984--the
date after which the Public Service Act recognized Group 3 seasonal
appointments. The only exception was where an employee had lost his or
her seasonal seniority before the roll-over, pursuant ,to the terms of the
collective agreement--for example, as a result of taking an unauthorized
leave of absence or declining an offer of seasonal work.
The settlement of the policy grievance generated a disparity between
"bid-ins" and "roll-overs". The nature of the disparity has been altered by
subsequent collective agreements, but differential treatment continues until
the present day, because the seniority of "bid-ins" has been governed by
successive contracts, whereas the seniority of "roll-overs continues to be
determined by the settlement contained in GSB No. 2181/90. As a result,
two employees with the same pre-classified employment history may have
different seniority because one is a "bid-in" and the other is a "roll-over". In
some scenarios, such as those presented by these eighty grievances, the
'troll-over" fares better than the "bid-in", but in other scenarios the opposite
is true. :
Whether a 'bid-in" or "roil-over" receives more favourable treatment
depends in part upon whether the individual's pre-classified employment
was purely seasonal--i,e. comprised exclusively of employment under a
Group 3 contract within the meaning of the Public Service Act--or a mixture
of Group 3 seasonal employment, and work under a Group 1,'2 or 4 contract.
Among employees whose pre-classified employment was exclusively
__ seasonal, "bid-ins" have been at disadvantage ever since the settlement of
the original policy grievance. Under article 25. l(b)-ofthe 1989-91
collective agreement, they received credit only for service after "the date on
which an employee commences a period of unbroken, full-time service." In
3
other words, the seniority of a "bid-in" ran only from his or her last break in
service, including any break between contracts in consecutive seasons. Such
a break did not diminish the seniority of a "roll-over", according to the
agreed terms of GSB No 2181/90.
This disparity was somewhat mitigated, but not eliminated, by the
1992-93 collective agreement. Under article 25.1 (d), employees received
credit for all work as a full-time, seasonal employee back to "the first break
in employment which was greater than thirteen (13) weeks." Accordingly,
"bid-ins" were credited with service preceding a break of thirteen weeks or
less. However, article 25.1 (d) denied "bid-ins" credit for service preceding
a break of more than thirteen weeks. Relying upon the settlement in GSB
No. 2181/90, the employer continued to ignore ali breaks, even those of
more than thirteen weeks, when calculating the seniority of "roll-overs",
giving them an advantage. This modified form of differential treatment
precipitated another policy grievance in which the union argued the new
article 25. l(d) applied to "roll-overs" as well as "bid-ins". The second
policy grievance was dismissed in GSB No. 1526/91, dated September 28,
1995 (Kaplan). The same sort of disparate treatment surfaced again in
litigation, after the negotiation of the 1994-98 agreement, in GSB No.
2854/96, dated April 23, 1997 (Gray). In that case, the union suggested
neither that the Kaplan decision was wrong nor that the new collective
agreement produced a different result than the one he had interpreted. In
dismissing 'the grievances before him, Mr. Gray noted the "differential
__ treatment continues because the union and employer have not agreed to
eliminate it." ~
In summary, among employees whose pre-classified history is purely
seasonal, all other things being equal, "roll-overs" fare better than "bid-ins"
4
where there is a break of more than thirteen-weeks, and "roll-overs" fare no
worse in other circumstances. There is no off-setting advantage for "bid-
ins".
The situation is different among employees with a pre-classified
history of both seasonal work and other employment in the public service.
"Roll-overs" had the advantage under the 1989-91 collective agreement, bUt
the advantage shifted to "bid-ins" under subsequent collective agreements,
at least where there is no break in service of greater than thirteen weeks. An
example will serve to illustrate this point. Consider two employees, one a
"roll-over" and the other a "bid-in", who both worked under Group 3
seasonal contracts from 1984 to 1987, declined seasonal work in favour of
Group 1 work from i987 to 1988, and returned to seasonal employment
from 1989 to 1991. Under the settlement in GSB 2181/90, the "roll-over"
would get credit for the two most recent years of seasonal employment,
having lost all seasonal seniority accrued before 1987 by virtue of declining
seasonal work at that time. The position of the "roll-over" has remained
unchanged through successive collective agreements, but the position of the
"bid-in" has changed with alterations to the contractual language. Under the
1989-91 collective agreement, the "bid-in" was credited only with service
since the last break between seasonal contracts--i.e, the last season's work--
which is less seniority than the "roll-over" had. The relative standing of
these two employees was reversed under subsequent contracts. Article
25.1(d) of the 1992-93 agreement gave the "bid-in" credit for ail seasonal
employment back to the first break greater than thirteen weeks--i.e, from
1984 to 1987 and from i989 to 1991, as there was no break in service of
more than thirteen weeks from 1984 on. In other words, the "bid-in" was
credited with five year's of seasonal work, whereas the "roll-over" got credit
5
for only two. The advantage enjoyed by the "roll-over" was increased by
article 18.1 (b) of the 1994-98 collective agreement which gives credit for all
"full-time weeks worked"--without the modifier seasonal--back to the first
break in service of thirteen weeks or more. In GSB No. 66/96, dated May
30, 1997, Mr. Gray interpreted this provision to mean an employee with a
mixed history of pre-classified work was entitled to credit for both seasonal
and other employment. According to this decision, the "bid-in" in the above
example would be credited with all work performed between 1984 and
1991, not just seasonal work.
The fundamental point is that the seniority of "bid-ins" is determined
by the language of successive collective agreements, whereas the seniority
of"roll-overs" is determined by the settlement in GSB 2181/90. The
settlement will continue to govern until the parties negotiate some other
arrangement.
In the interest of clarity, I have reviewed the history of this matter in
some detail, even though there is no dispute between the employer and
union as to the proper disposition of the grievances at hand. One of the
grievors, Mr. Rustenberg sent a letter to the union objecting to the
differential treatment of "roll-overs" and "bid-ins", and part of his letter was
read to me at the hearing. Mr. Shalla and the other grievors make the same
complaint through their grievances. Notwithstanding the grievors' concerns,
the employer and union agree I am without jurisdiction to hear these
grievances, because the issue has been resolved by the Board's earlier
__ decisions which are binding upon the parties. The submission of the parities
on this point is clearly correct, given Mr. Shime's decision in E. Blake and
Amalgamated Transit Union, GSB File No. 1275/87, dated May 3, 1988.
The grievances are dismissed.
6
APPENDIX A
GSB # GRIEVOR BACKLOG LOCAL UNION #
1235191 Bryson N ' 316 91D551
" Hammond N 316 91 D552
" Hoare N 316 91D553
" Martin N 316 91 D554
" Storie N 316 91 D555
1635/91 Pratt N 435 91F018
2266t91 Hutchinson N 455 91H035
2822/91 Heaton N 312 92C012
3124/91 David N 726 92B679
2339192 Cameron N 611 92F889
" Haase N 611 92F890
3749~92 Tomberg N 611 93C484
1765~95 Riche N 652 95E581
,r Schilf-Henson N 652 95E582
" Smith N 652 95E583
1956/95 Black N 319 95E657
" Cr~gg N 319 95E653
" Reynen N 319 95E655
" Riemenschneider N 319 95E656
1957195 Alkema Y 313 96E649
" Atlen Y 313 96E650
" Gormaly Y 313 95E651
" Mooney Y 31.3 95E652
1995t95 Ewing Y 455 95D596
" Hutchinson Y 455 95D597
" Lawrence Y 455 95D598
" Spence Y 455 95D599
2104~95 Simzer Y 453 96B045
2147t95 Carriere Y 435 96B065
2148195 Irwin Y 356 96B068
2149/95 Ferguson Y 356 968067
2184t95 Maronets Y 225 968127
2186/95 Williams ' ' Y 225 968126
2187/95 Schraeder Y 103 968124
2205/95 Emery Y 103 968125
2213/95 Kraft Y 309 96C111
2246/95 Briggs Y 611 968160
" Cameron Y 611 968161
" Haase Y 611 968163
" Hill Y 611 968162
" Lawson Y 611 968164
" O'Shaughnessey Y 611 968165
" Scarr Y 611 968166
" Tomberg Y 611 968168
" Va[otaire Y 611 968167
2267/95 Payette Y 652 968181
2269/95 Augustine Y 639 968179
2296/95 Sh alia Y 316 96 8217
2315t95 Brooks Y 724 96B268
" Brown Y 724 968267
" Couture Y 724 96B269
'" Ertel Y 724 96B270
" Ferren Y 724 96B271
" Gadawski Y 724 96B272
" O'Neill Y 724 96B273
" Rustenber§ Y 724 96B274
0106f96 Allen Y 703 968410
" Barkauskas Y 703 96B411
" Leroux Y 703 96B412
" VanHorne Y 703 96B413
0123/96 Ridout Y 316 96B425
0689/96 Bryson Y 633 96B752
0884/96 Park Y 728 96B863
0885t96 Price Y 728 96E]864
0886/96 Fazekas Y 728 96B865
0887/96 Welch Y 728 96B866
0888/96 Barnes Y 728 96B867
0889/96 Gerrish Y 728 96B868
0890/96 Nelson Y 728 96B869
1195/96 Hamend Y 316 96B986 '-
" Scott Y 316 96B987
n/a Carriere N 435
nfa Devereaux N 319
n/a Hueston N 435
n/a Martetock N 453
n/a Moraal N 639
n/a Palbiski N
nta Pozzebon N 639
n/a Waite N 130
APPENDIX B
tN THE MATTER OF A PROCEEDING BEFORE THE
ONTARIO PUBLIC SERVICE GRIEVANCE SETTLEMENT BOARD
between
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
and
Bryson et al
and
THE CROWN IN RIGHT OF ONTARIO
(as represented by the Ministry of Natural Resources)
AGREED STATEMENT OF FACTS
The grievances included in this consolidation are. lis.ted in Appendix 1. It is
the Ministry's position that although a number of the grievances were not
referred to the GSB in a timely manner, this hearing will deal with all of the
grievances listed.
On October 30, 1990 the Union filed a policy grievance, GSB# 2181/90,
alleging that the Ministry was improperly treating a number of year-round
positions as seasonal positions (copy of grievance attached as Appendix 2).
On June 13, 1991, the Parties entered into a binding agreement in settlement
of GSB# 2181/90, which was made an Order of the Grievance Settlement
Board (attached as Appendix 3). The settlement was explicit regarding the
employees to whom the terms of the settlement applied (referred to as
"Roltovers"). The settlement, in part, allowed for a calculation of continuous
service for Roltovers more generous than that for emploYees who bid into the
classified service through the competitive process (referred to as "Bid-ins").
Bid-ins had their continuous service calculated in accordance with the terms
of Article 25 of the (blue) collective agreement (copy of blue Article 25
language attached as Appendix 4).
On August 6, 1991, the Union flied a policy grievance, GSB# 1526/91 (copy
of grievance attached as Appendix 5), seeking to have the continuous service
date calculation of GSB# 2181/90 applied to Bid-ins. That is, the Union
sought to have the seniority of Bid-ins increased to be in parity with the
Rollovers. _
At about the same time as the filing of Union policy grievance GSB# 1526/91,
a number of Bid-ins filed individual grievances identical in substance to that
policy grievance. The Parties agreed to hold those individual grievances in
abeyance pending the outcome of GSB# 1526/91.
On March 5, 1992, the Parties entered into a new (green) collective
agreement, which Provided for a more generous calculation of continuous
service for Bid-ins under Article 25 than did the predecessor (blue) collective
agreement (copy of green Article 25 attached as Appendix 6).
On July 9, 1992, the Union filed a second policy grievance, GSB# 1294/92
(copy of grievance attached as Appendix 7), seeking to have the continuous
service calculation of GSB# 2181/90 revoked, and the terms of (green) Article
25 applied to Rolloverso That is, the Union sought to decrease the seniority of
Rol~overs to be in parity with the Bid-ins.
At about the same time as the filing of Union policy grievance GSB# 1294192,
a number of Bid-ins filed individual grievances identical in substance to that
policy grievance. The Parties agreed to hold those individual grievances in
abeyance pending the outcome of GSB# 1294/92.
GSB# 1526/91 and GSB# 1294/92 were consolidated and proceeded to
arbitration, with the Board rendering a number of interim awards relating to
third party notice. Vice-Chair Kaplan rendered a final decision on September
28, 1995 (copy attached as Appendix 8), dismissing both of the grievances.
The Board confirmed that Rollovers were to have their continuous service
dates calculated in accordance with the terms of GSB# 2181190, and that Bid-
ins were to have their continuous service dates calculated in accordance with
the collective agreement.
Following the release of the Board's decision in GSB# 1526/91, 1294/92, a
number of Bid-ins filed individual grievances claiming that the Employer and
the Union had acted in a manner that was arbitrary, discriminatory and in bad
faith contrary to the collective agreement and the Ontario Labour Relations
Act, by failing to calculate continuous service the same for Bid-ins and
Rollovers.
On January 18, '~ 996, a number of Bid-ins filed a complaint to the Ontario
Labour Relations Board, File No. 3717-95-U (copy of complaint attached as
Appendix 9), alleging that by virtue of the differential seniority treatment
between Bid-ins and Rollovers, the Employer and the Union were engaged in
unfair labour practices in violation of Section 91 of the Ontario Labour
Relations Act.
In a decision dated October 2, 1998, the Ontario Labour Relations Board
dismissed File No. 3717-95-U (copy of the decision attached as Appendix
10)..
13 As a result of a number of GSB decisions on the interpretation and
application of Article 25 (now Article 18), the collective agreement may now
provide Bid-ins (depending on their particular work history) with a more
generous calculation of continuous service than Rollovers received under the
terms of GSi~# 2181/90.
For the Ministry:
Lori
Aselstine Date: December 11, 1998
For the Union:
Cameron
Walker Date: December 11, 1998
13