HomeMy WebLinkAbout1991-1526.Union.93-03-18 ONTARIO . EMPLO¥~:$ DE LA COURONNE
CROWN EMPLOYEES DE' I. 'ONTA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNDA$ STREET WEST, SUITE 2100, TORONTO, CNTAi~IO. MSG
'~80, RUE DUNDAS OUEST, BU,qEAU 2100, TO~ONTO (ONTARIO). MSG 1Z8 FAC$IMILE/T~t_~COF:'fE :
1526/91, 1294/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIV~ B/%RGAINING ACT
Before
THE'GR~EFANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Management Board of Cabinet)
Employer
BEFORE W. Kaplan Vice-Chairperson
M. Vorster Member
F. Collict Member
FOR.THE H. Law
GRIEVOR Negotiator
Ontario. Public Service Emloyees Union
FOR THE P. Toop
RESPONDENT Counsel
Legal Services Branch
Management Board of Cabinet
HEARING July 8, 1992
February 4, 1993
Introduction
On August 6, 1 991, OPSEU filed a union grievance with the Management
Board of Cabinet alleging a violation of Article 25 of the Collective
Agreement. In brief, the union· claims that the' employer is improperly
calculating the continuous service of certain civil servants. The case
proceeded to a hearing in Toronto, at which time submissions and
-arguments were heard, and an agreed-upon statement of facts was
introduced. A'number of procedural issues were also raised, and the Board
was called upon to make rulings with respect to them before the merits of
the case can be addressed. This award, therefore, deals with those
preliminary issues, but in order to do so it is necessary to set out the
salient facts of the dispute.
The Facts
This case concerns the Ministry of Natural Resources. The parties are
agreed that as of August 6, 1991, the date of the grievance (hereafter
referred to as the "1 991 Grievance"), the IVtin'istry of Natural Resources
employed over 4,000 classified employees who were subject to the
Collective Agreement between Management Board and OPSEU. The Ministry
also employed a large number of seasonal employees whose terms and
conditions of employment are also regulated by the Collective Agreement
between Management Board and OPSEU.
It is Ministry Policy to seek the most qualified candidates when recruiting
for the classified civil service. As a result of their on-the-job experience,
seasonal employees are often the successful candidates in job competitions
held under Article 4 of the Collective Agreement. Prior to June 13, 1 991,
seasonal employees who were ,successful applicants for permanent staff
positions were entitled to credit for previous continuous service as
unclassified employees according to the terms of Article 25.1 of the
Collective Agreement, which at that time provided:
An employee's length of continuous service will
accumulate upon completion of a probationary period of
not more'than one year and shalt commence:
la) from the date of appointment to the
Classified Service for those employees with
no prior service in the Ontario Public Service;
or
lb) from the date on which an employee
commences a period of unbroken, full-time
service in the public service, immediately
prior, to appointment to the Classified
Service;
(c) for a regular part-time civit servant, from
January 1, 1984 or from the date on which he
commenced a period of unbroken, part-time
service in the public service, immediately
prior to appointment to a regular part-time
position in the civil service, whichever is
later.
"Unbroken service" is that which is not interrupted by
separation from the public service, '"full-time" is
continuous employment as set out in the hours of work
schedules for the appropriate classifications; and
"part-time" is continuous employment in accordance with
the hours of. work specified in Article 61.1.
Prior to June 13, 1991, only active unclassified employment which was
contiguous to the commencement of active employment in the civil service
was credited. The maximum credit that a seasonal employee could receive
upon joining the class, ified service was for the last season worked,
provided it had ended immediately prior to appointment to the classified
service.
Related to these events was the filing of ~ union grievance on October 30,
1990 (hereafter the "1 990 Grievance"). That grievance claimed that the
Ministry v~as improperly appointing a number of employees to unclassified
positions. The basis of the union claim was its assertion that the len.gth of
these contracts, up to eleven months in a twelve-.month period, indicated
the existence of de facto permanent positions in the classified civil service
rather than seasonal positions in the unclassified civil service. On June 1:3,
1 991, the parties settled this grievance, and that settlement was issued as
an order of this Board (Union Grievance 21 81/90 (Diss~nayake)). This
settlement resulted in approximately 1000 unclassified seasonal positions
becoming classified posit!ons. It also resulted in the "roll-over" placement
of ~pproximately 92_7 incumbents of seasonal positions to the classified
civil service.
In resotving..the 1990 Grievance, the parties addressed the issue of
continuous service. They agreed that "The Ministry shall calcufate each
incumbent's length of continuous service as a classified civil servant by
crediting each incumbent .with seniority accumulated under article 3.20.1 of
the collective agreement, to be pro-rated as a calendar rather than hourly
service, thus providing a calendar date of continuous service, based upon
hours per day on the appropriate schedule." The effect of this settlement
was to give prorated credit for continuous service based on Jhours worked
since 1984. Break periods were not included in the calculation.
5
Some further background facts are in order. The Ministry has recently
completed a major reorganization of deployment and complement. This
reorganization has affected all levels of classification, in every major
program area, in every region of the province. A number of employees have
either changed positions or job locations as a result of these changes.
Where job security is affected, the Ministry is obtig:ated to consider the
seniority of the affected employees. And it is this requirement that led the
union to file the 1991 Grievance.
Appointments to positions and/or work locations are determined among
permanent staff on the basis, in part, of continuous service. However,
individuals who had previously been appointed to the permanent staff
pursuant to Article 4 of the Collective Agreement had been generally
credited less generously with their unclassified continuous service than
those individuais who were appointed to the classified staff pursuant to
the settlement of the 1990 Grievance. In the result, there are variations in
the seniority among employees that depend not on actual time worked, but
the formula used for crediting that time. By and large, although there are
exceptions to this, those employees who rolled over have received greater
seniority credit for time worked in the unclassified civil service than those
employees who posted in. After the roll-over came into effect, the.
employees who had posted in wanted to be treated, for seniority purposes,
the same way as the employees who had rolled over, and so the 1 991
Grievance was filed. Between the settlement of the 1'990 grievance and the
expiry of the 1989-1991 Collective Agreement there were very few
appointments to the permanent civil service.
6
On January 1, 1992_ a new Collective Agreement came into effect. Article
25.] now provides a different formula for the calculation of continuous
service upon hiring from the unclassified public service into the classified
public service: .. ...
Effective February 3, ~ 992_ an employee's length of
continuous service will accumulate upon completion of a
probationary period of not more than nine months and
shall commence:
(a) from the date of appointment to the
Classified Service for those employees with
no prior service in the Ontario Public Service;
or
(b) effective January 1, 1992, from the date
established by adding the actual number of
full-time weeks worked by a full-time
unclassified employee' during his full-time
employment back to the first break in
employment which is greater than thirteen
.weeks; or
(c) for a regular part-time civil servant, from
January 1, 1984 or from the date on which he
commenced a period of unbroken, part-time
empioyment in the public service,
immediately prior to appointment to a regular
part-time position in the civil service,
whichever is later; or
(d) effective'January 1, 1984 from the date
established by adding the actual number of
full-time weeks worked-by a full-time
seasonal employee during his full-time
employment back to the first break in
employment which is greater than thirteen
weeks.
7
"Unbroken service" is that which is not interrupted by
separation from the public service; "full-time" is
continuous employment as set out in the hours of work
schedules for the appropriate classifications; and
"part-time" is continuous employment in accordance with
the hours of work specified in Article 61.1.
In brief, the union takes a number of alternative positions. First, that
Article Z5.1 (b) of the 1989-1991 Collective Agreement provides that all
unclassified service, which covers all calendar time from the date of an
employee's first .seasonal contract until appointment to the civil service, is
credited to the employee upon entry into the classified civil service. In the
alternative the union argues that the settlement of the 1990 Grievance was -
with prejudice and provides the formula agreed upon by the parties for the
determination of seniority of all employees, not just those who rolled over.
Or, in the further alternative, that the provisions of Article .25.1 (d) of the
successor Collective Agreement cover all employees, including those
appointed to the classified civil service pursuant to the roll-over. In the
union's submission, the new Article 2.5.1 retroactively readjusts the
seniority of the roll-over employees and in that way ensures that all
employees are treated.equally for the purpose of seniority calculation. The
employer takes the position that Article 25.1(d) of the 199Z-1993
Collective Agreement provides the formula for the calculation of seniority
for all employees except those covered by the 1990 grievance settlement,
the roll-over employees. It is worth noting in passing that the seniority
calculation provision in the 199Z-1993 Collective Agreement is more
favourable to employees than that found in the predecessor Collective I
· Agreement, but is not as favourable to employees as provided for in the
roll-over settlement of the 1990 Grievance.
8
Before evidence and argument on this issue could be heard, a number of
procedural issues had to be addressed.
Procedural issues
On the first day of hearing, employer counsel took the position that the
1991 Grievance was inarbitr~ble. First of all, counsel argued that the
provisions of the 1992-1993 Collective Agreement could not be applied
since the 1991 Grievance was filed under the predecessor Collective
Agreement. In support of this proposition, counsel argued that the
1992-1993 Collective Agreement was retroactive to January 1, 1984, as
provided for in Article 25.1, but that this retroactivity did not apply to the
roll-over employees as their seniority had been determined by the 1990
Grievance settlement. This settlement, counsel pointed out, conferred a
critical job interest on these employees, and should not be interfered with.
Union counsel argued that logic and sound industrial relations dictated the
conclusion that a new Collective Agreement. must take precedence over
individual rights conferred under a predecessor Collective Agreement.
· Union counsei posed the question: what if the 1992-1993 Collective
Agreement provided for an even more generous formula for calculating
senioritY'than that found in the 1990 Grievance Settlement? Would the
employer argue that the roll-over employees were disentitled, by virtue of
the earlier settlement, to the benefit of the new provision? Counsel
suggested that such an argument woutd not have much likelihood of success.
In support of their, respective positions a number of arguments were made
by both counsel. Employer counsel argued that chaos would result if the
seniority of the roll-over employees was suddenfy changed, and any change
could have a ripple effect where seniority was used to determine other
entitlements such as in the case of promotions or transfers or vacation
entitlement. Union counsel argued that in almost every case the roll-over
eml~loyees received more seniority than the posted-in employees, and that
this was not only unfair, but it could be a determinative factor affecting
individual employee interests, such as promotions. Various other
argument~ were made either in support or against the proposition that the
1991 Grievance was moot. Union counsel argued that it was a continuing
grievance; employer counsel argued that there was no issue under the
1989-1991 Collective Agreement between the parties and so the Board was
without jurisdiction in this case. These arguments occupied the better part
of one day of hearing time, at the conclusion of which the Board
unanimously suggested that the parties should attempt to resolve their
differences.in the interests of bringing this matter to a conclusion.
particul.ar, it was suggested to the parties that it might be in their
interests, as wel. I as in the interests of conserving the Board's resources,
to either agree that the the 1 992-1993 Collective Agreement provision
applied to the 1991 Grievance, or file and consolidate a second union
grievance with the first one. A second day of hearing was scheduled for
February 4, ~ 993.
Between the first day of hearing and tl~e second scheduled day of hearing
the union filed another grievance. Dated July 9, 1992, this grievance '
alleges that the ]vljnJstry iS calculating the seniority of civil servants
unequally. The remedy sought is a declaration that seniority should be
calculated in the same manner for all employees, along with any other
remedial relief that may be a consequence of the improper calculation of
seniority. The union sought to have this grievance (hereafter referred to as
the "]992 Grievance") consolidated with the 1991 Grievance. The employer
10
refused the request, taking the position, inter alia, that the grievances did
not involve the same issue and so should not be before the same panel. The
union wrote the Chair of this Board requesting a consolidation order. By
letter dated December 18, 1992, Mr. Shime referred this request to this
panel of the Board for argument and decision.
Argument on the Consolidation Request
When the hearing reconvened on February 4, 1993 the consolidation request
was put before us.
Union Argument
Union counsel argued that this was an appropriate case for the Board, as the
master of its own procedure, to direct the consolidation of two cases that
were properly before it. Union counsel argued that the two grievances dealt
with the same subject matter, that is the proper calculation, of seniority.
They were about, exactly the same thing, and the best way for this issue to.
be resolved was by the Board hearing them both together, either by way of
consolidation or seriatim.
Employer Argument
Employer counsel argued tha~ while the 1991 Grievance and the 1 992
Grievance were before the Board, they should not be consolidated for
hearing at the same time.
Employer counsel referred the Board to its practice, note dated April 11,
1986. It is as follows:
WHERE ORDER MAY BE ~JADE
Where two or more proceedings are pending before the
Grievance Settlement 13oard and it appears to the
Grievance Settfement 13oard that,
they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same
transaction or occurrence or series of transactions or
occurrences; or
(c) for any other reason an order ought to be made under
this rule,
the Grievance Settlement 6oard may order that,
(d) the proceedings be consolidated or heard at the same
time or one immediately after the other; or
(e) any of the proceedings be,
(i) Stayed until after the determination of any other
of them. ~
in the order, the Grievance Settlement Board may give
such directions as are just to avoid unnecessary costs or
delay and, for that purpose, the Grievance Settlement
Board may dispense with service of a notice or listing
for hearing and abridge the time for placing a grievance
on the hearing list.
Employer counsel argued that the two union grievances were not the same,
and for that reason alone they should not be heard together. In counsel's
submission, there was one case already before the Board. The Board was
seized with that case, and it would be improper, given that the hearing of
that case had already begun, to consolidate a second case with it,
particularly given the objections of one of the parties.
With respect to the Board's practice note, employer counsel argued that a
necessary precondition to consolidation was that two or more matters be
"pending" before the Board, In counsel's view, the i991 Grievance 'was
pending. However, he argued that while the 1992 Grievance was before the
Board, it was not "pending" because no panel of the Board had yet been
seized with it. Accordingly, in counsel's view a' necessary precondition to a
consolidation order.had not been met, and the union's request could be and
should be denied on that basis. Employer counsel a(so argued that there was
no evidence before the Board for it to find that the conditions in (a) and (b)
of the practice note had been met. Counsel pointed out that the agreed
statement of facts entered into evidence on the first day of hearin9 did not
apply to the 1 992 Grievance. Moreover, a different Collective Agreement
was in force for each grievance, and so it could not be said that there was
any common qu. estion of law. In addition, employer counsel suggested that
the union's various alternative arguments were unique to 'the 1 991
Grievance, and so should not be part of a consolidated case also involving
the 1992 Grievance.
Employer counsel further took the position that important principles of
natural justice were involved in this case. This panel of the Board was
already seized with one case, and so it could not be said to be starting with
a clean slate with respect to the determination of the second case. Counset
also argued that the Board was constituted by a Collective Agreement, and
only had jurisdiction to hear cases arising out of the particular Collective
Agreement from which the dispute arose..While employer counsel agreed
that this Board was also constituted by statute, he submitted that the
Board could not, at the same time, simultaneously, constitute itself under
two different Collective Agreements. Counsel also suggested that tt~ere
was support in the Board's jurisprudence for the assertion that
consolidation orders were not available in policy grievances. Counsel
referred us to a number of authorities in support of the various
propositions which he made: Syndic~t des travailleurs(euses) de I'abattoir
de Princeville v. H~mond (SCC) 89 CLLC 12_,413; Neamtz et al 516/84
(Gorsky); Hardeman et al t206/90 (Verity), and Fabro 755/89 (Roberts).
Upon careful review of these, cases we do not find that they assist us in
resolving the matters in dispute before us.
Finally, employer counsel argued that the union had not discharged its onus
of providing the Board with sufficient reasons in support of its
consolidation request.
Union Reply
In reply, union counsel suggested that the word "pending" in the practice
note should not be given the interpretation suggested by the employer, and
that there was nothing in that note that said that all questions of law and
fact had to be the same. The purpose of the practice note and consolidation
order was, in counsel's submission, to make effective use of the Board's and
the party's resources where there was major similarity in two grievances
before the Board. In counsel's view, the cases relied on by the employer
were inapplicable. The Board was not constituted under a Collective
Agreement, it was constituted under a statute, and union counsel agreed, at
the Board's request, to forward a Divisional Court to decision on point to
the Board following .the hearing. Very simply, in counsel's submission, the
Board had jurisdiction over its own procedure and there was nothing in the
case law that supported the employer's assertion that the Board could not
or should not consolidate policy grievances where there was good reason to
do so.
Decision With Respect to the Consolidation Request
After hearing the arguments of the parties, the Board recessed and then
advised the parties' that for written reasons to follow, we had unanimously
exercised our discretion to consolidate the 1992 Gr. ievance with the 1991
Grievance.
In our view, this is a proper case to exercise our discretion to consolidate
two cases, notwithstanding the objections of one of the parties, Not only
does the Board have the statutory power, and responsibility, to determine
its own procedure, it has, in the Consolidation Practice Note, articulated
its policy with respect to consolidation-applica.tions. And, as already
noted, the Chair of the Board, in this particular case, explicitly directed
this panel to hear and decide the union's consolidation request. It would be
hard to think of a more appropriate occasion in which to direct the
consolidation of two cases. The two grievances in this case arise out of
the same set of facts, and affect the same.group of employees, generally
considered. Moreover, as noted by the Divisional Court, the "Board is a
creature of statute which, at alt relevant times, has had jurisdiction to
deal with grievances under whatever collective agreement may have been in
force between the employer and the applicant union" (See OPSEU and the
Crown in Right of Canada, Divisional Court Decision dated July 2, 1 989,
reported at 51 O.R. (Znd) 474).
It is hard for us to see how natural justice could be undermined by .our order
in this case. Both grievan.ces are union grievances. Both grievances involve
the seniority entitlements of the same employees. Seniority entitlements
are extremely important, and are of a continuing nature. We are hard
pressed to think of any legal and policy reason in support of having these
virtually identical policy grievances separately heard and decided.
Clearly, these grievances raise common issues of fact and law. Moreover,
there are other reasons in support of a consolidation order. To only hear the
1991 Grievance and to rule on it would not make best use of the Board's or
the parties resources. The 1992 Grievance would eventually be scheduled
for hearing, and at that time many of the. same submissions and arguments
would be made. To be sure, part of the claim and some of the facts in the
1991 Grievance are different from that in the 1992 Grievance. However,
this can be dealt with by consolidating both cases and hearing submissions
and arguments with respect to the 1991 Grievance first, and then hearing
submissions and argument 'with respect to the 199Z Grievance. Obviously,
there is nothing wrong with the union making alternative submissions with
respect to the first'of these grievances, and the fact that it m~y end up
doing so .is not a bar in and of itself to a consolidation order. Alternative
submissions are commonly made before this Board, and by proceeding in the
manner just outlined any concerns that the employer expressed about the
possible breach of the-'~equirements of natural justice can be met. Put
another way, those facts and arguments that pertain only to the 1991
Grievance wilt be heard first. Then we will hear the facts and arguments
that pertain to the 1992 Grievance. Then we will issue reasons for decision
in both grievances.
Notice Requirement
After advising the parties that we had ordered the consolidation of the
1991 and 1992_ Grievances, we heard submissions with respect to notice.
After some discussion, it was agreed that since the seniority of the
roll-over employees may be adversely affected should the union prove
successful in either or both grievances, those employees were entitled to
notice of these proceedings. The union agreed to this "without prejudice" to
its rights in other cases.
With the assistance of the Board, it was agreed that the following notice
would be sent to the roll-over employees: "Take notice that a proceeding
has commenced before the Grievance Settlement Board. This proceeding
may result in your seniority rights being adversely affected. As an
interested Party, you are entitled to attend and participate in these
proceedings." lt' was ~agreed that the employer would generate the list of
affected employeesl and that if the parties were unable to agree about who
would bear the cost of the notice, and how the notice would be
communicated 'to the affected employees, we woutd hear submissions with
respect to those issues and attempt to assist the parties in resolving them.
rt was also agreed that this notice would be sent to the interested
employees at least four weeks prior to the next hearing date.
This case will continue on May 4, 1993,
DA,TED at Toronto this IS~h day of ua_-ch, 1993.
William Kaptan
Vice-Chairperson
M. Vorster
Member
~ember