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HomeMy WebLinkAbout1993-0244.McPhee.98-03-20 _______ ______ __n__ o"~":'-~ -', ...~~ ~::....'~. --~- ONTARIO EMPLOYES DE LA COURONNE I. CROWN EMPLOYEES DE l'ONTARIO "">!". 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1 Z8., FACSIMILEITELECOPIE (41tJ) 326-1396 GSB #0244/93 OPSEU #93B482 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McPhee) Grievor - and - The Crown 10 Right of Ontano (MiOlstry of the Sohcltor General and Correctional Servlces) Employer BEFORE H. S Finley Vice-Chair D .M. Clark Member M.D Lyons Member FOR THE L Yearwood UNION Gnevance Officer Ohtano Public ServIce Employees UOlon FOR THE M. Mously EMPLOYER Staff RelatIOns Officer Mimstry of the Soheltor General and CorrectIOnal Servlces HEARING January 27, 1995 October 22, 1997 (Executive SesslOn) , - - - - - ----- ~ ~ -.:..~~j? . 1..::;" GSB 0244/93 DECISION Tlus gnevance arIses out of a Job competItIOn held In the FIre Marshall's Office, In 1992, for the posItIOn of FIre ServIces InvestIgator 2 The effectIve date of the posItIOn was December 16, 1992 Two of the candIdates for the posItIon were Les McPhee, the GrIevor , and Marcel Lalonde, the successful candIdate and Incumbent. The partIes agree that should the UnIon be successful the Grievor wIll be placed In the posItIon, as of December 16, 1992 They further agree that the outcome of thIS process WIll not affect Mr Lalonde's posItIOn. Nonetheless, the Umon dId send lum thIrd-party notIce as a precautIOnary measure. However, Mr Lalonde chose not to attend. The Panel dId not have the benefit ofMr Lalonde's eVIdence The Facts The facts of thIS case as presented are not In dIspute. The results of the competItIOn process indIcated that these two candIdates were relatively equal and seniority, therefore, became the decIdIng factor under ArtIcle 4 of the 1992-1993 CollectIve Agreement: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 4.3 I In filling a vacancy, the Employer shal1 give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor Both the GrIevor and the successful candIdate have been employees of the MInIstry of the SoliCItor General (and the predecessor responSIble for polIce servIces, in the case of Mr Lalonde) for approxImately 18 (McPhee) and 27 (Lalonde) years respectIvely, and were so at the tIme of the competItIon. Mr McPhee, the Grievor, had worked for the Ontano Fire Marshall's Office SInce October 14,1974 and was a member of the CIvIl ServIce ASSOCIatIOn (Inc.) pnor to ItS becomIng the Ontano Public ServIce Employees Umon. Mr Lalonde worked as an OntarIO 1 >~~ ProvIncIal Pohce officer from September 30, 1965, until he moved to the OntarIo FIre Marshall's Office on November 17, 1975 When he was wIth the Ontano ProvIncIal Pohce, he dId not belong to the CIvIl Service AssocIatIOn of Ontario (Inc ) but was, instead, a member of the Ontano ProvIncIal Pollce ASSOCIatIOn, In accordance wIth the Police Act, R.S.O 1970, as amended, whIch prohIbIted a member of a pollce force from beIng a member of a umon. 117 A member .of a police force shall not become or remain a member of a trade union or of an organization that is affiliated directly or indirectly with a trade union, unless the membership is required for secondary activities that do not contravene section 49 and the chief of police consents. ThIS prohibItIon contInues under the Police Services Act, R.S.O 1990, and encompasses members of the Ontano ProvIncIal Pollee force. SpecIal labour relatIOns provlSlon for polIce forces, Includmg the Ontano ProvIncIal Pollee force are set out In the Public Service Act and the Police ActPolice Services Act The partIes agree that the dernal of the posItIOn to the Gnevor was based solely on the mclusIOn of Mr Lalonde's Ontano ProvincIal Pollce service m his length of contInUOUS service (sernonty) calculatIOn. The Urnon dIsputes Its InclUsIOn. It IS the Urnon's posItIOn that unless the partIes specIfically provide for semonty credIts from outSIde the bargammg urnt m the CollectIve Agreement, sernority must remam wIthm tht'? confines of the agreement. It IS the Employer's posItIOn that semonty should be calculated from the date of appomtment to the ClaSSIfied ServIce, on the basIs that there IS rio reference to any restnctIOn to members of the bargaInIng unIt In Artlcle 25 of the 1992-1993 Collective Agreement: ARTICLE 25- SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 Effective February 3, 1992, an employee's length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) 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 2 :'!S ~ ~r--..__. ....-..JI~~ (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 full1time employment back to the first break in employment which is greater than thirteen (13) weeks, or (c) for a regular part-time civil servant, from January I 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 Cd) effective January I, 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 (13) weeks. "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 contmuous employment in accordance with the hours of work specified in Article 61 1 Effective December 20, 1990, any leaves-of-absence granted under Articles 3.9 and 3.35 shall be included in the calculation of length of continuous service. Havmg agreed to the faCts, the partIes called no eVIdence but made mstead, both oral and wntten submIssIOns. They presented theIr submISSIons mitIally at the heanng held m January 1996, and m follow-up written submIssIOns m early and mId-1997 The Collective Agreement which served as theIr reference pomt throughout was the CollectIve Agreement dated January 1, 1992 to December 31, 1993 They referred to the statutes whIch were In force at the tIme of the competItIOn and the heanng. Followmg an ExecutIve SeSSIon held by the Panel, the partIes were asked to' address the questIon of whether or not OntarIO Provmcial PolIce officers were CIvIl servants and to make submIssIOns on the CollectIve Agreement whIch was In place at the tIme that Mr Lalonde came Into the bargamIng umt. Mr Lalonde has had a continUOUS servIce date of September 30, 1965, for over thIrty years. The gnevance of Mr McPhee, If successful, would reduce the length of Mr Lalonde's' continUOUS servIce by ten years, or by approxImately one-thIrd. The effect of such a reductIon would not be lImIted to the outcome of the Job competItIOn. The Employer has mdIcated that there would be no effect In that regard, however, a contmuous servIce date IS not reVIsed for a Single purpose, and for that reason, a finding of the Board that Mr Lalonde had no entItlement 3 !f,- ~ - '--I!l to the ten years credit he brought in from his service with the Ontano ProvmcIal PolIce, could have a major impact on hIm. To make such a findmg, the Board would need to be presented wIth "very clear language" to rebut the "presumptIon agaInst abridgement of semonty nghts" After consIdenng the submIssIOns of the parties, the Panel deterrmned that In order to render a deCISIOn, the folloWIng questIOns had to be answered. I Was Mr Lalonde a member of the OntarIO PublIc ServIce durIng hIS tIme as a member of the OntarIO ProvmcIal PolIce? 2 WhIch CollectIve Agreement applIes to Mr Lalonde In detemumng hIS length of contmuous servIce? 3 Does the applIcable CollectIve Agreement allow for credIt for tIme outsIde the r bargammg umt ? 4 Does the wordmg of any of the subsequent CollectIve Agreements retroactIvely alter Mr Lalonde's contmuous servIce date? 5 Should Mr Lalonde's tIme served In the OntarIO ProvmcIal PolIce be Included In the calculatIOn of hIS contInUOUS servIce date? 1 Was Mr Lalonde a member of the Public Service during his time as a member of the OntarIO Provincial Police? It IS agreed by the partIes and confirmed by the Panel that Mr Lalonde, as a member of the Ontano ProvIncIal PolIce force between 1965 and 1975, was a member of the OntarIO PublIc ServIce and contInued to be a member of the OntarIO PublIc ServIce when he moved to hIS InItIal pOSItIon WIth the Ontano FIre Marshall's office. 4 "'- <:.t) - ,~ 2 Which Collective Agreement applies to Mr. Lalonde in determining his length of continuous servIce? Mr Yearwood relIed on a Supreme Court of Canada decisIOn respectmg the apphcable CollectIve Agreement to argue that the CollectIve Agreement at the tIme of the Job competItIOn should govern. / [14,047] Syndicat des travailleurs (euses) de l'abattoir de Princeville vs. Hemond 89 CLLC 12,413 In the Princevi/le v Hemond case, three employees left the bargammg umt to become foremen m the plant. Subsequently they were demoted and returned to the bargammg umt. At the time they returned, the ColleCtlve Agreement then m effect, entItled them to 5 years' semorIty whIch was less semorIty than they would have receIved had theIr semorIty, at the tIme of re-entry, been calculated under the CollectIve Agreement m effect at the tlme they were promoted. Had the terms of the earlier agreement still been m effect, they would have been entitled to 27, 17, and 14 years semority, respectively They filed a motIon contending that their seniority should be calculated in accordance with the collective agreement in effect at the time they were promoted to the position of foreman, not that in effect at the time they rejoined the bargaining unit. [T]hey alleged that the seniority clause contained in the most recent collective agreement cannot be set up against them In support of their argument that the most recent seniority clause does not apply to them, respondents argued that their seniority rights are vested. rights which cannot be abridged without their agreement. They argued that the union has no power to alter their seniority rights by a subsequent collective agreement, as for all practical purposes those rights are personal rights which can neither be limited not abolished without agreement between the parties. The Court followed ArbItrator Bora Laskm's (as he then was) deCISIOn mRe Federal Wire and Cable Co infra, and concluded that It cannot be said that the union in this case at bar did not have the right to alter respondents seniority rights by means of a subsequent collective agreement. S ------- ~lt 'r; The Court went on to state that Respondents' seniority rights relate to the application of the most recent agreement. The Umon here has taken the pOSItiOn that the Princeville v. Hemond case stands for t}1e pnnclple that the Collective Agreement WhICh IS "current", that IS, In thIS Instance, current at the time of the Job competition, is the one to be applIed, and In thIS case It was the agreement dated January 1, 1992 to December 31, 1993 Mr Yearwood concluded from thIS that the provIsIOns In the Agreement at the tIme ofMr Lalonde's entry Into the bargaImng urnt were melevant m a determmatIOn of the semonty nghts wluch could be credited to Mr Lalonde m the competItIOn. He then reasoned that the Collective Agreement (January 1, 1992 to December 31, 1993) had been drafted to extend semonty nghts only for tIme spent m the bargalmng umt pnor to the appoIntment to a full-time classified posItIOn. In other words, former part-time unclasSIfied and seasonal employees receIve some credit for theIr former servIce mSlde the bargaimng unit. The agreement, he argued, does not allow for any credIts for pnor employment as a publIc servant outSIde of the OntarIo PublIc Service agreement. The only prior exceptIOn would be the recently dIsbanded Go Temp employees. Tlus was the only category of unclasSIfied employees not covered by the OntarIo PublIc ServIce agreement as it had been excluded under the old Crown Employees Collective Bargaining Act, s 1 (1)(f)(vli) However, he mamtamed, subject to this anomaly, the semonty credit provlSlons m the Ontano PublIc ServIce agreement only extend to servIce under the CollectIve Agreement, endorsmg the dlsentltlement of any semority prOVlSlons to Mr Lalonde whIle a member of the Ontario PrOVInCIal Police force. Finally, Mr Yearwood urged the Panel to conSIder that Article 25 1 of the CollectIve Agreement, January 1, 1989 to December 3 1, 1991 refers to .. full tIme servIce in the unclaSSIfied service, Immediately pnor to appomtment to the ClasSIfied Service." ArtIcle 25 1 (b) of the CollectIve Agreement dated January 1, 1992 to December 31, 1993 refers to .. .full tIme weeks worked by a full tIme unclasSIfied employee dunng lus full time employment." Accordmgly, Mr Yearwood concluded, full-tIme servIce m the PublIc ServIce before appomtment to the ClaSSIfied ServIce, has got to be on an unclaSSIfied basIS. The Employer dId not make submISSIons on the Issue of the applIcable CollectIve Agreement. 6 " 6-, it The Panel's readmg of the Princeville v. Hemond case IS that the "current" collectIve agreement applIes at the entry pomt mtothe bargammg umt of the employee whose semonty IS m questIOn. The gnevors there had their semority establIshed under the terms of the Collectlve Agreement whIch was m force when they entered the bargammg umt for the first tIme They then left the bargammg umt. When they later returned to the bargammg unIt, theIr semonty was determmed for a second tIme, and It was agam determmed under the CollectIve Agreement whIch was m force or was "current" at the tIme they were havmg theIr semonty calculated for the second tIme. The Court ruled that they could not have theIr senionty determmed by an earlIer and more favourable collectIve agreement but that they were subject to the terms of the Collective Agreement whIch was "current" or m force at the tIme of each entry mto the bargammg umt. The Panel's mterpretatIon of thIS rulmg m the context of the case at hand IS that Mr Lalonde's length of contmuous servIce would be determmed by the terms of the CollectIve Agreement m force at the tIme he entered the bargammg unIt, or by the terms of the CollectIve Agreement whIch first aqdressed length of contmuous servIce If that was subsequent to rus entry tlme His length of continuous servIce date could also have been altered by subsequent CollectIve Agreements whIch mIght have contaIned a term that applIed to rum retroactIvely He came mto the OntarIO F Ire Marshall's Office on November 17, 1975 The date of the applicatIon of ArtIcle 4.3, supra, the "fillmg-a-vacancy artIcle", is m no way detenmnatlve ofMr Lalonde's semonty Mr Lalonde entered the bargammg unit m 1975/1976, not m 1992, and the fact that he partIcIpated m a Job competItIOn whIch was bemg determmed on the baSIS of semonty m 1992 does not alter that. The Panel recogmzes that the partIes are entItled to negotIate changes WIth respect to semonty whIch could have retroactIve implIcatIOns. In other words, the mitIal contmuous servIce date may later be altered by subsequent amendments whIch apply to rhe employee concerned, however, thIs would reqUIre clear language and would relate to all employees m the bargammg umt who fell WIthm the parameters of the retroactIve change. Mr McPhee and Mr Lalonde entered the Ontano FIre Marshall's Office in the Mimstry of the SolIcItor General at a tIme of change. The Crown Employees Collective Bargaining Act 1972, had came mto force and on December 13, 1972, Ontano RegulatIon 577/72 was made under 7 --; (t; i~ tins Act Among the Items It addressed was the recogmtIOn of the Civil ServIce ASSOCiatIOn of OntarIo '1 The Civil Service Association (Inc ) is designated as the employee organIzation that shall have representation fights In relation to the bargaming UnIt referred to in subsection I upon the day the Act comes Into force. Then on March 14, 1973, a further regulatIOn was made under the Crown Employees Collective Bargaining Act, 1972, whIch set out procedural forms for use m the procedures of the OntarIO PublIc ServIce Labour Relations Board. ThIS Act was then amended in 1974 At tins pomt, the mime m current use, "Ontano PublIc ServIce Employees Umon" does not seem to have made Its appearance On September 2, 1975, Mr Howard Brown was appomted by the OntarIO PublIc ServIce Labour RelatIOns Tnbunal as chaIr of a Board of ArbItratIOn under the prOVISIons of the Crown Employees Collective Bargaining Act, 1972 as amended by The Crown Employees Collective Bargaining Amendment Act, 1974, in the matter of an arbItratIOn between the CIVIl ServIce AssociatIOn of OntarIO (Inc.) and the Crown m right of Ontario by Management Board of Cabmet relatmg to workIng condItIOns of employees In the CIvIl ServIce ASSOCIatIOn of OntarIO (Inc.) He noted m his award that "[p ]roposals for a collectIve agreement" had been submItted by the CIVIl ServIce ASSOCiatIon ofOntano (Inc.) on March 21, 1974 and smce that tIme, about 40 meetmgs had been held between the partIes. On January 28, 1976, he released the award. Pnor to thIS, the terms of employment for employees m the Ontano Pubhc Service were set out m the RegulatIOns to the Public Service Act, R.S.O 1970. These were supplemented by a senes of Memoranda of Agreement. Regulation 749 under the Public Service Act was m effect at the pertment time. "Length of contmuous servIce" appears In both the Statutes and the RegulatIon but does not appear to be defined m either untIl an amendment of Regulation 749 by Ontario Regulation 870/77 followmg the award of ArbItrator Brown whIch contamed the followmg artIcles WIth respect to length of contmuous servIce and vacancy fillmg. 8 ~\ it. ~ Article 23 - Seniority 23 1 shall be as follows: .23 1 - Length of continuous service (seniority) for each employee covered by this agreement shall be Province-wide and shall be established upon completion of the probationary penod of not more than one year and will then commence from the date of the employee shIre. 23.2 - A break in continuous service (seniority) shall have occurred a) if an employee resigns, b) if an employee is dismissed unless such dismissal is reversed through the grievance procedure, c) if an employee is laid off in excess of 24 months, d) if an employee is absent without leave. Article 6 - Posting of vacancies 602 - In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where, in the opinion of the Employer, qualifications and ability are relatively equal, length of continuous service shall be a consideration. The term of the Agreement was as follows The Board awards that the collective agreement shall be effective for one year from the date of this award to the parties, subject to any specific agreements between the parties as to the effective date for any of the provisions to be included in the collective agreement which shall then be retroactive to such dates as agreed. Dunng the same penod, the CIvIl ServIce ASSOCiatIOn (Inc.) was renamed the Ontano PublIc ServIce Employees Umon and entered mto the first of a number of CollectIve Agreements "for employees m the Ontano PublIc ServIce" and tms mcluded a defimtIOn of "length of contmuous servIce" Collective Agreements between Ontario Public Service Employees UnIon and the Crown in right of Ontario represented by Management Board of Cabinet for employees in the Ontario Public Service Working Conditions (Jan. 28,1976 to Jan. 27, 1977) ARTICLE 19 - SENIORITY 19 1 Length of continuous service (seniority) for each employee covered by this Agreement shall be Province-wide and shall be established upon completion of the probationary period of not more than one (1) year and will then commence from the date of the employee's hire. 9 :.t\ 'L 19.2.1 A break in continuous service (seniority) shalI have occurred: .19.2.2 if an employee resigns; 19.2.3 if an employee is dismissed unless such dismissal is reversed through the grievance procedure; 19.24 If an employee IS laid off In excess of twenty-four months, 19.2.5 if an employee is absent without leave Ontario Regulation 870/77 defined "contInuous servIce" as follows "continuous service" includes any period of fulI-time serviCe in the public service immediately before last appointment as a civil servant. ArbItrator SWInton at page 7 of Bickerstaff and Turner, infra, cautlOns that s. 29.(3)of The Public Service Act provides that a provision in a colIective agreement which conflicts with the provisions of a regulation will override the regulation. For the purpose of the case at hand, the Panel does not see a conflICt. The CollectIve Agreement also contaIned the follOWIng wruch was referred to In OPSEU (Bickerstaff and Turner) and The Crown in Right of Ontario (Ministry of Government Services), (1980) GSB 74/49, 90/79, (SwInton), at page 16 of thIS decIslOn. It IS CIted here to Illustrate that Its effect was lImIted and dId not apply to Mr Lalonde. ARTICLE 3 - EMPLOYEE CATEGORIES 3 1 Persons, other than civil servants as defined in The Public Service Act, who become employees pursuant to Section I (I) (g) (v) of The Crown Employees ColIective Bargaining Act, 1972 as amended, shalI have their Working Conditions and tenns of employment as follows: 3.2.1 Category A Those persons who work on a regular and continuing basis for thirteen (13) hours per week or less: 10 'rt if"j 3.3 I Category B Those persons who work more than thirteen (13) hours per week. 34.3 Employment in either category shall not be considered continuous service. An employee in either category who is appointed to the probationary status of the Civil Service shall be considered to be a new employee. Provided, however, that if such a position becomes pennanent then the time the employee actually worked shall be deducted from the employee's probationary period, if the employee has worked within the year prior to the appointment to probationary staff. SectIon 1 (1) (g) (v) of The Crown Employees Collective Bargaining Act, 1972 refers to (a) a person who is employed on a casual or temporary basis unless he has been so employed contmuous for a period of six months, or more, The length-of-contmuous-agreement artIcle which has applIcatIon to Mr Lalonde, for the above reasons, IS ArtIcle 23 of the Brown declSlon of January 28, 1976, mcorporated into the 1976/1977 CollectIve Agreement between OPSEU and Management Board of Cab met as ArtIcle 19 3 Does the applicable Collective Agreement allow for credit for time outside the bargaining unit? The Panel determmed above that the applIcable CollectIve Agreement WhICh establIshed Mr Lalonde's was ArtIcle 23 of the Brown declSlon and ArtIcle 19 of the 1976/1977 Collective Agreement between OPSEU and Management Board of Cabmet. The partIes, however, both grounded theIr submIssIOns m ArtIcle 25 1 of the 1992-1993 CollectIve Agreement and the Panel has been cogmzant of that throughout ItS deliberatIOns. 11 :i (~ The Union Lester Yearwood, for the UOlon, submItted the following pOints In arguing hIS case . The terms of the CollectIve Agreement are restrIcted to the employees covered by the CollectIve Agreement between the partIes The purpose of thIs Agreement between the Employer and the Union is to establish and maintain. (a) satisfactory working conditions and terms of employment for all employees who are subje~t to this Agreement (b) a procedure for the prompt and equitable handling of grievances and disputes. ARTICLE 1. - RECOGNITION I I In accordance with The Crown Employees Collective Bargaming Act, the Ontario Public Service Employees' Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of clause f of subsection I of Section I of The Crown Employees Collective Bargaining Act. . The Crown Employees' Collective Bargaining Act (CECBA) and the Ontario Labour Relations Act deSIgnate OPSEU as the exclusIve bargaIOlng agent. . The Ontano Provincial PolIce Association IS recognized under the Public Service Act 27 (I) In this section, (a) "agreement" means an agreement in writing between the Crown on the one hand and the Association on the other hand, (b) "Arbitration Committee" means the Ontario Provincial Police Arbitration Committee; (c) Association" means an association including only members of the Ontario Provincial Police Force which is not affiliated directly or indirectly with a trade union or with any organization that is affiliated directly or indirectly with a trade union and which repr~sents a majority of such members to whom sections 27 and 28 apply for the purposes of collective bargaining; (d) "Negotiating Committee" means the Ontario Police Negotiating Committee. 12 ('4' ~ (2) Sections 27 and 28 apply to members of the Ontario Provincial Police Force who are cadets, probationary constables, corporals, sergeants and staff sergeants includi~g detective-sergeants, traffic sergeants and identification sergeants. I . The OntarIo ProvIncIal PolIce are clearly excluded from the Crown Employees Collective Bargaining Act, there bemg no reference to them therem, Crown Employees Collective Bargaining Act, 1993, R.S 0 1993, c. 38 1 -(1) In this Act, "Crown employee" means a Crown employee as defined in the Public Service Act but does not include (a) a member of the Ontario Provincial Police Force; . The Police Services Act demes a member of a polIce force, Includmg the OntarIO Provmclal PolIce, membershIp In a trade umon or affilIate of a trade UnIon, 117 (supra) . WhIle guarantees of semonty nghts are extended to certam groups under the CollectIve Agreement between the partIes, they are not extended to members of the Ontano Provmcial Poli~e ASSocIatIOn. . "An employee's length ofcontmuous servIce" referred to m ArtIcle 25 speaks, In 25 1 (b), of full-tIme, unbroken servIce m the Ontano PublIc ServIce, under th1s CollectIve Agreement; 25 1 (supra) .'" . Employees transferred mto the bargammg unIt should not be afforded a better pOSItIOn WIth respect to SeI!-IOnty than those who have accumulated theIr semonty wlthm the bargamIng unIt. The Umon does not, Mr Yearwood explamed, questIOn Mr Lalonde's entItlement under ArtIcle 4 3 at the tIme of the competItIon or subsequent to November 1975, but It does questIOn how he can be afforded the nghts under ArtIcle 4 for the period of tIme he was an employee, pnor to becommg a member of the OPSEU bargammg unit. The Umon takes the pOSItIon that if ArtIcle 4.3 supra, IS appropnately applIed wIthm the terms of the CollectIve Agreement, then, on December 16, 1992, Mr Lalonde would have had less semonty than Mr McPhee, and there IS no questIOn but that the GrIevor would have been successful m the competItIOn. Mr Yearwood 13 '< ~ asked that the Gnevor be placed m the posItIOn effectIve December 16, 1992, wIth full I retroactlvIty and wIth protectIOn of semonty nghts under the current Collective Agreement. The Emplo~ At the heanng, Mike Mously, for the Employer, submItted that under Artlcle 25 of the CollectIve Agreement, which has not been changed substantively s10ce 1975, except for a decrease m the probatIOnary penod from 12 to 9 months, semonty IS calculated from the date of appo1Otment to the Classified ServIce, and there IS no reference to any restnctIOn to members of the bargammg umt. Once m the barga1010g umt, an employee has access to ArtIcle 25 and when he or she enters mto that bargammg unIt, has the abIlIty to regard any penod of tIme 10 the classified servIce as part of hIS or her semonty or cont1Ouous servIce A number of employees m the OntarIO PublIc ServIce, he explamed, do not belong to thIS bargaImng unIt and are not c;overed by this Collective Agreement. GIven that the partIes. have agreed to language m the CollectIve Agreement WhICh does not specIfy a restnctIOn to the bargaInIng urnt, It IS clear that they dId not mtend to limIt the applIcation of semority to those members of the OntarIo PublIc ServIce who belong to the OPSEU bargam10g unit. He stated that at the tIme of the competitIOn, both Mr McPhee and Mr Lalonde were members of the bargaInIng urnt, both were represented by the Umon and both had access to ArtIcle 25 Mr Lalonde, he maIntaIned, has belonged to the claSSIfied sectIOn of the OntarIO PublIc ServIce and worked for the MInIStry of the SolICItor General smce 1965 and hIS nght to be conSIdered for senionty WithIn In the barga10Ing unIt began m 1975 Further, the partIes do have a practice of backdat10g semonty pnor to the appointment to the ClassIfied ServIce, for example, the case of unclassIfied employees whIch IS addressed m ArtIcle 25 1 (b) Fmally, Mr Mously submItted that an Ontano Prov1OcIaI PolIce Officer IS a member of the Ontario PublIc ServIce under the PublIc ServIce Act. It IS the Employer's pOSItIOn that Mr Lalonde's seniority from hIS servIce WIth the Ontano PrOVInCIal PolIce should be mcluded m the calculatIOn of hIS length of contmuous servIce and when thIS IS done, he has greater semonty than the Gnevor and therefore IS the successful candIdate m the 14 .. ~~ '> competItlOn and accordIngly Mr Lalonde should have been awarded the positIon at the time of the competitIon. The wrItten submISSIons on behalf of the Employer were made by GIselle Basanta, who took over the file when Mr. Mously moved to another assIgnment. Ms. Basanta submItted that In order to be awarded a posItIon WIthIn the OPSEU bargaInIng umt, an employee WIth pnor servIce In the Ontano Pubhc ServIce, but outSIde the OPSEU bargaInIng umt, cannot benefit from that pnor servIce In order to WIn a competItlOn where quahfications and abIhty are relatIvely equal. That IS, such an employee applYIng for pOSItIon assIgned to the OPSEU bargaInIng umt has no semonty that a competItlOn IntervIewpanel can conSIder However, If that employee WInS the competItlOn outrIght therefore entenng the OPSEU bargaInIng umt, then the years of pnor full-time servIce would be reflected by hIs/her contmuous servIce date as calculated In accordance WIth Article 25 With resp~ct to the applIcable CollectIve Agreement, the Employer dId not offer any submIssions on the Issue but referred to the January 1, 1992 to December 31, 1993 agreement throughout. The Panel recognizes the importance of senionty to mdividual members of the bargammg umt and at the same tIme, acknowledges the nght of the partIes to establIsh, through language In theIr collectIve agreements, credIt for time outSIde the bargaInIng unit. The reductlOn of an IndIVIdual's length of continuous servIce as well as the grantIng of credIt for tIme outSIde the bargamIng umt reqUIre clear language. The following cases were submItted by the partIes, the first by the Umon, the second by the Employer, whIle they do not deal With the wordmg of ArtIcle 19 m the 1976/1977 CollectIve Agreement they do address the Issue of credIt for servIce outSIde the bargaInIng umt: In OPSEU (Bickerstaff and Turner) and The Crown in Right of Ontario (Ministry of Government Services), (1980) GSB 74/79, 90/79, (SwInton) the Gnevors were employees who had, ImtIally, been members of the unclassIfied servIce, and subsequently became members of the clasSIfied servIce and contInued as members of the claSSIfied servIce untIl the time of theIr retIrement. At that time a dIspute arose as to the proper method for calculatIng theIr termmatlOn 15 .. :., pay They were "employees" who were In the bargaimng umt and who were "seeking to draw on theIr servIce outsIde the bargaInmg UnIt to obtain benefits." The Board reasoned that This leaves the problem whether the union can bargam for senIority prOVisions which include a penod of service outside the bargaining unit and, if so, whether the Union has bargamed to achieve that end under the collective agreement... The grievors here are in a position where they are now "employees" and in the bargaining unit, and they are seeking to draw on their service outside the bargaining unit to obtain benefits. Article 25 I (b) allows individuals to obtain seniority credit for at least some periods in the unclassified service, referring to "unbroken, full-time s~rvice in the public service, immediately prior to appoint to the classified service" There are two possible interpretations of these words. First, one could argue that this clause refers to full-time service as an "employee (urider s.l (l)(g) of Ihe..D:.own Employees Collective BG/:gaining Act). Thus, it would be restricted to service in the bargaining unit and would not include those outside the definition of "employee", such as the grievors, who were excluded by s.l(J)(g)(vi) Alternatively, it could be argued that the phrase refers to any period of unbroken, full-time employment in the public service, whether or not the individual was then in the bargaining unit or eligible for collective bargaining. In interpreting a collective agreement, it is to be assumed that parties take into account the trend in arbitral awards and are aware that arbitrators do recognize efforts to give credit for service outside the bargaining unit, as well as treat ambiguities in language in the employee's favour rather than that of the group. To conclude that continuous service refers to full-time service in the unclassified service, even outside the bargaining unit, would be consistent with the direction of most arbitral awards. It would also give significance to the change in wording in the seniority provision in Article 25 I since the Mahmood case (supra). The parties have now explicitly referred to acquisition of seniority by those employed in the pllbJ.k service, whereas in the 1976- 1977 collective agreement, certain public servants in the bargaining unit (those exempted from the s. 1 (1) (g) )v) exclusion in the Act) were explicitly denied seniority for their period in the public service (Article 34.3) [supra]. Other public servants in the bargaining unit were not mentioned. Both groups of public servants in the unit are now explicitly covered by Article 3, and Article 36 makes the seniority provisions in Article 25 applicable to them. If they work full-time and in unbroken service, they can acquire seniority based on their period in the public service. Their "continuous service" will include any period of full-time, unbroken service in the unclassified service prior to their appointmentto the classified service in April, 1972. In OPSEU (Pattullo) and The Crown in Right of Ontario (Ministry of Health), (1989), GSB 2267/87 (Samuels) the Panel, dealt WIth the Issue of the semonty granted to claSSIfied employees who had preVIOusly worked as "Go-Temp" employees on temporary work aSSIgnments. The Board found that 16 11''{ fi~ in our view the language of Article 25 I (b) is crystal clear This provision is not giving any rights to an employee who is not a member of the bargaining unit. The employee who gets the seniority creditis a member of the bargaining unit. The parties to the collective agreement can provide for seniority credit for bargaining unit employees in respect of any period of time, including periods of time during which the employee was not a member of the bargaining unit. The Panel has also taken note of an "arbItral rule" set out In Scott, GSB 1434/96 (Gray) at page 20 There is a well-established arbitraLrule of collective agreement interpretation that "an employee s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness whenever it is contended that an employee s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement" Re U E. W Local 512 and Tung-Sol of Canada Ltd. (J 964) 15 L.A. C. 161 (Reville) This principle is applied in assessing the effect of amendments to a collectiv~ agreement: Re Dufferin-Peel Roman Catholic Separate School Board and Association of Professional Student Services Personnel (1995), 48 L.A.c. (4th) 316 (M.G Picher) When the parties amend their collective agreement, they are presumed not to have intended to take away any of the employees' accrued seniority unless the language they used clearly demonstrates that they had such an intention. In OPSEU (Union) and the Crown in Right of Ontario (Ministry of Natural Resources/Management Board of Cabinet), GSB 1526/91 and 1294/92 (Kaplan), VIce ChaIr Kaplan commented as follows. As a general matter, and unless there is evidence indicating a contrary intention, an employee's seniority date does not change from one collective agreement to the next. No matter how or when obtained, it continues in force unless there is some compelling reason to find that the parties have intended to retroactively adjust it. The language In ArtIcle 19 1 (23) does, in the OpInIOn of the Panel, permIt credIt for servIce outsIde the bargaInIng umt but WIthm the Ontano PublIc ServIce Collective Agreements between Ontario Public Service Employees Union and the Crown in right of Ontario represented by Management Board of Cabinet for employees in the Ontario Public Service Working Conditions (Jan. 28,1976 to Jan. 27,1977) 17 '0',. :i .. ARTICLE 19 - SENIORITY 19 1 Length of continuous service (seniority) for each employee covered by thIs Agreement shall be Province-wide and shall be established upon completion of the probationary period of not more than one (1) year and will then commence from the date of the employee's hIre. 19.2.1 A break in continuous service (seniority) shall have occurred. 19.2.2 if an employee resIgns, 19.2.3 if an employee is' dismissed unless such dismissal is reversed through the grievance procedure; 19.2.4 if an employee is laid off in excess of twenty- four months; 19.2.5 if an employee is absent without leave. Mr Lalonde was an employee covered by the Agreement once he entered the bargammg umt on November 17, 1975 From that date, he 'could avail hImself of the tenns and benefits of the Agreement. The descnptIOn of semonty as "provmce-WIde" can be read as sImply a dIstmctIOn from mmIstry-wIde. However, when read in conjunction wIth title of the agreement WhICh describes the agreement as bemg "for employees m the Ontano PublIc ServIce", "provmce-wIde" can be mterpreted as synonymous With the Ontano PublIc ServIce. TIns interpretatIOn IS remforced by the worc:fing m the subsequent Collective Agreement (1977/1978) Collective Agreements between Ontario Public Service Employees Union and the Crown in right on Ontario represented by Management Board of Cabinet for employees in the Ontario Public Service. Working Conditions (Jan 28,1977 to Jan. 31, 1978) ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 An employee's length of continuous service will accumulate upon completion ofa probationary period of not more than one year and shall commence from. a) the date of appointment to the classified service for those employees with no prior service in the Ontario Public Service; or b) the date on which an employee commences a period of unbroken, full-time service in the Unclassified Service, immediately prior to appointment to the Classified Service. "Unbroken service" is that which is not interrupted by separation from the Public Service; and "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications. 18 " -' 'I' {;. ThIs CollectIve Agreement also uses the phrase in ItS title, "for employees m the Ontano Pubhc ServIce" In the contmuous servIce article Itself, the descnption "provmce-wIde" has been dropped and the scope IS now defined by the terms "Ontano Pubhc ServIce" and "Public ServIce" Mr Lalonde was hIred mto the OntarIo Pubhc ServIce on September 30, 1965 HIS entry mto the OntariO Pubhc ServIce was as a umform member of the Ontario Provmcial Pohce. He would have served a probatiOnary penod at that time and It would be unusual for hIm to be requIred to serve a second probationary penod for the same Employer on movmg to another pOSItiOn m 1975 Accordmg to Article 19, hIS length of contmuous servIce dates from hIS date of hIre whIch was September 30, 1965 4. Does the wordmg of any of the subsequent Collective Agreements retroactively alter Mr Lalonde's continuous service date? Between 1976 and 1997, the partIes entered into ten Collective Agreements each of whIch contamed an artIcle respectmg length of contmuous servIce/seniority They were January 28, 1976 to January 27, 1977 ArtIcle 19 January 28, 1977 to January 31, 1978 ArtIcle 25 February 1, 1978 to January 31,1979 Article 25 February 1, 1979 to December 31,1979 ArtIcle 25 January 1, 1980 to December 31,1981 Article 25 January 1 1982 to December 31,1983 ArtIcle 25 January 1, 1984 to December 31, 1985 ArtIcle 25 January 1, 1986 to December 31,1988 Article 25 January 1, 1989 to December 31,1991 ArtIcle 25 January 1, 1992 to December 31, 1993 Article 25 January 1, 1994 to December 31, 1998 ArtIcle 25/18 19 ; 1 The evolutIon of ArtIcle 25 1, now ArtIcle 18 1, earlIer ArtIcle 19 (23), IS set out below The changes from one verSIon of the artIcle to the next are hIghhghted In bold, the deletIons noted by an asterIsk (*) The amendments ui. the January 1, 1994 to December 31, 1998 are not relevant to the matter at hand but the latest and the current verSIon IS noted here to present a comprehenSIve pIcture to date of the evolutIOn of thIS artIcle. COLLECTIVE AGREEMENTS Collective Agreements between Ontario Public Service Employees Union and the Crown in right of Ontario represented by Management Board of Cabinet for employees in the Ontario Public Service Working Conditions (Jan. 28,1976 to Jan. 27, 1977) ARTICLE 19 - SENIORITY 19 1 Length of continuous service (seniority) for each employee covered by this Agreement shall be Province-wide and shall be established upon completion of the probationary period of not more thaf\ one (1) year and will then commence from the date of the employee ~ hire. 19.2.1 A break in continuous service (seniority) shall have occurred. 19.2.2 if an employee resigns; 19.2.3 if an employee is dismissed unless such dismissal is reversed through the grievance procedure; 19.2.4 if an employee is laid off in excess of twenty-four months; 19.2.5 if an employee is absent without leave. Collective Agreements between Ontario Public Service Employees Union and the Crown in right of Ontario represented by Management Board of Cabinet for employees in the Ontario Public Service Working Conditions (Jan. 28,1977 to Jan. 31,1978) ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one * year and shall commence from. a) the date of appointment to the classified service for those employees with no prior service in the Ontario Public Service; or, 20 I \" ' " .) ..~-~ , (b) from the date established by aejding the actual number of full- time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he or she commenced a period of unbroken, part-time employment 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 or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks. "Unbroken service" is that which is not interrupted by separation from the public service; and "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 58.1 (Hours of Work). Effective December 20, 1990, any leaves-of-absence granted under Artic:le 31.9 (Unclassified Employees - Pregnancy and Parental Leave) and Article 32.19 (Seasonal Employees - Pregnancy and Parental Leave) shall be included in the calculation of length of continuous service. A reVIew of the subsequent verSIons of the "Seruority (Length of Contmuous ServIce)" ArtIcle, that IS those verSIOns from 1977 to 1992, reveals no amendments whIch would in the opimon of thIS Board, deny Mr Lalonde the right to mclude hIS pnor Ontano ProvmcIal Pollce/ Ontano Publlc ServIce servIce m hIS length of contmuous servIce calculatIOn 9r whIch would reduce the length of that servIce. 5. Should Mr. Lalonde's time served in the Ontario Provincial Pollee be included in the calculation of his continuous service date? The detemunatIOns and the reVIew set out above lead the Panel to the conclusion that Mr Lalonde's tIme served m the Ontano PrOVInCIal PolIce should be mcluded m the calculatIOn of hIS contmuous service date. The Employer was not in error when It included Mr Lalonde's servIce from September 30, 1965 to November 17, 1975 In the calculatIOn of hIs length of contmuous servIce. 27 1 ~~ -I+:~ lj Conclusion The gnevance of Mr McPhee IS dIsmIssed and the Employer's decIsIOn respectmg Mr Lalonde's placement m the FIre ServIces InvestIgator II posItIon IS confirmed. 1 Dated at Kmgston / l /-i7)~Lf;0 . J H.S Finley, Vice-chair thIS 20th March, 1998 A~ ~ c.:;:::7~ .- D M. Clark, Member /1 Addendum to follow 28 n --- -- --- --- - -- ---- --- - --- -- - <. ONTARIO CMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT I . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-13~ GSB #0244/93 OPSED #93B482 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN OPSEU (McPhee) Grievor - and - The Crown In RIght of OntarIo (Ministry of the SolicItor General and CorrectlOnal SefV1ces) Employer BEFORE H. SFinley Vice-Chatr D.M. Clark M~mber M.D Lyons Member FOR THE L. Yearwood UNION Gnevance Officer Ontario Public SefV1ce Employees Druon FOR THE M. Mously EMPLOYER Staff RelatIons Officer Mirustry of the SolicItor General and Correctional SefV1ces HEARING January 27, 1995 October 22, 1997 (ExecutIve Session) - ~ . G S E 244/93 OPSEU (McPHEE) and MINISTRY OF THE SOLICITOR GENERAL \ AND CORRECTIONAL SERVICES ADDE.T\ffiUM It is clear fram the legislation, nor do the parties dis~ute, that the PJsit~on of Ontario Provincial Police officer was (and st~ll is) a PJsition within the Ontario Public Service Also, all the Collective Agreements l::etween the fldrties u~ to and inCluding the one wh~ch terminated on December 31, 1991 contained a ~rovision by which "(an) employee's length of continuo~s service (would) accumulate from the date on which an employee cc.'rmences a f?eriod of unbroken, full-time service in the public service, immediately ~rior to apPJinG~ent to the Classified Service " The result of the above for Mr La 1 ond e wa s tha t ,a t the tine of the cemf?etition, the time he s~ent in the 0 P P was counted as part of his continuous service giving him greater seniority than Mr McPhee (As the award notes, it would take clear and unambiguous language to take away frem t1r Lalonde any seniority credited to him for the time he sf?ent in the 0 P P ) However, the Collective Agreements since January 1992 no longer contain the ~rovision which allowed an em~loyee to accumulate senio-rity (continuous service) for unbroken, full-time service in the Public Service immedi..ltely ~rior to a~PJintment to the Classified Service Since an 0 P P officer is d member of the Ontario Public Service but not a member of the Civil Service (which includes Classified and Unclassified employees), it seems clear that any 0 P P offlcer who ~s a~PJ~nted to a Eargaimng Unit PJs~t~on in the Civil Service after January 1992 \vould not have time s~ent in the 0 P P credited to his/her senionty Of course, all other Public Service employees who are not employees of the C~vil Service would be treated in a similar manner Dated at Toronto tlus 8* day of June 1998 )