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HomeMy WebLinkAbout1996-0066.Guthrie&Nguyen-Black.97-05-30 ONTARIO EMPLOYES DE LA COORONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 190 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G.1Z8 TELEPHONE/TELEPHONE (414) 326-1388 190, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS(M(LE/TELECOP(E (414) 324-1396 GSB # 66/96, 2858/96 OPSEU # 9 6B3 8'0, 97B395 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Guthrie/Nguyen-Black) Grievor - and - the Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE o V. Gray Vice-Chair FOR THE J Gilbert GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING May 15, 1997 Decision The gnevors allege that the employer has mcorrectly calculated theIr con- tmuous servIce dates under what IS now ArtIcle 18 1 of the partIes' collectIve agreement. A classIfied employee's contmuous service date determines lus or her sen- IOnty for purposes of Job competitIOns, bumpmg and recall nghts and other entI- tlements involvmg the relatIve senionty rankIng of employees. It also deter- mines whether an employee whose employment ends wIll receIve certam termI- natIon payments, and in what amounts. ArtIcle 18 1 provides for the calculatIOn of a classIfied employee's contmuous service date It determmes how much credIt IS to be given for any employment m the unclassified servIce prIOr to the em- ployee's appomtment to the classIfied servIce. Each of the gnevors was a full-time unclassIfied employee before hIS or her appomtment. In each case, some but not all of that prIOr full-tIme unclassi- fied employment was employment as a "seasonal employee" wlthm the mearung of what IS now ArtIcle 32.2 1 of the collective agreement. These gnevances raIse Issues about the meanmg and applIcatIOn of two of the clauses of ArtIcle 18 1 clause (b), wluch speaks about gIvmg credIt for "full-tIme weeks worked by a full- time unclassIfied employee", and clause (d), wluch speaks of gIvmg credIt for "full-time weeks worked by a full time seasonal employee" Although "appomtment" can be used to describe the transaction by wluch someone enters mto or contmues (by way of further contract) m the unclassIfied servIce, m what follows "appomtment" means "appomtment to the claSSIfied servIce", and "appOInted" and "appomtee" have correspondIng mearungs - 2 - Issues The Issues of general applIcatIOn raised by these grIevances are 1 Whether, as the employer asserts, an employee IS precluded from havmg lus or her contmuous servICe date calculated under clause 18 1(b) If the employee's last unclassIfied employment prIor to bemg appomted was as a "seasonal" employee, and, 2 Whether, as the employer asserts, full-time weeks worked as a seasonal employee are not included in the "full-time weeks worked as a full-time unclassIfied employee" for whICh credIt may be gIven under clause 18 1(b) The union says that clause 18 1(b) is avaIlable to all employees, regardless of the nature of theIr prior servIce, and that the full-time unclassIfied servIce for wluch credit may be claImed under that clause mcludes seasonal servIce . Collective Agreement History Before turnmg to the facts of the grIevances, I shall first sketch the hIS- tory of the collective agreement prOVIsIOns m questIOn. PrIOr to the partIes' 1984/85 collective agreement, the predecessor of Arti- cle 18 1 read as follows ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 251 An employee's length of contmuous servIce will accumulate upon completlOn of a probatlOnary perlOd of not more than one (1) year and shall commence from (a) The date of appomtment to the Classuied ServIce for those employees WIth no pnor servlCe m the Ontano Pubhc ServlCe, or (b) the date on whIch an employee commences a penod of unbroken, full trme servIce m the pubhc servIce, immechately pnor to appomtment to the C1assllied ServIce. "Unbroken servIce" IS that whIch IS not mterrupted by separatlOn from the pubhc servIce, and "full trme" IS contmuous employment as set out m the hours of work schedules for the appropnate classuicatlOns, - 3 - Under clause 25 1(b) as It then read, credIt was only gIven for that portIOn of any prior full-time unclassIfied employment m the pubhc servIce that was both "contmuous" and "ImmedIately prIor to appointment." An appomtee had to have been a full-time employee m the unclassIfied (pubhc) service at the time of her appomtment m order to get credIt for any of her prior unclassIfied servIce In that event, the employee would get credIt under artIcle 25 1(b) for the perIod from the date of her appomtment back to the begmnmg of that most recent pe- riod of contmuous, full-time employment. If the employee's employment hIstory contamed a period of any length durmg whIch she was not employed m the un- classified servIce, clause 25 1(b) gave no credIt for service prior to that period. No dIstmctIon was made for these purposes between "seasonal" and other forms of unclassIfied servIce. (Indeed, it IS common ground that the partIes' collective agreements dId not define "seasonal" employment or make dIstmctIOns about it for any purpose for periods prIOr to 1984.) Thus, an appomtee with a hIStOry of unclassIfied employment of a seasonal nature - that is, mterrupted by periods of unemployment - would not get credIt for all of that prior unclassIfied em- ployment. In the partIes' 1984/85 collectIve agreement, ArtIcle 25 1 was amended to proVIde that appomtees to the part-time classIfied servIce could get credIt for prIOr part-tIme unclassIfied employment. With the amendments emphaSIzed, Ar- ticle 25 1 then read as follows ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 An employee's length of contmuous service will accumulate upon comp1etlOn of a probatlOnary period of not more than one (1) year and shall commence (a) from the date of appomtment to the Classnied ServIce for those employees WIth no prior servIce m the Ontario Pubhc ServIce, or (b) from the date on WhICh an employee commences a period of unbroken, full tune servIce m the pubhc servIce, unmediate1y prior to appomtment to the ClassIfied ServIce, or (c) for a regular part ttme cwtl servant, from January 1, 1984 or from the date on winch he commenced a perwd of unbroken, part ttme employment m the publtc servtce, tmmedwtely prwr to appomtment to a regular part ttme posttwn m the cwtl serVtce, wlnchever tS later - 4 - "Unbroken servIce" IS that whIch IS not mterrupted by separatIOn from the publIc servIce, "full time" IS contmuous employment as set out in the hours of work schedules for the appropriate classIfications, and "part-tlme" lS contmuous employment m accordance wlth the hours of work specified m Artlcle 61 1 Clause 25 1(b) remamed unchanged. An appomtee could get credIt under that clause for any penod of unbroken, full-tIme unclassIfied employment wruch was "Immediately pnor to" hIS or her appomtment, whether the prIOr unclassIfied employment was "seasonal" or non-seasonal or a combmatIOn. In 1990, the union gneved that the MImstry of Natural Resources was "improperly treating a number of year round posItions as seasonal pOSItIOns." The umon and employer eventually settled that gnevance on terms set out m an agreement dated June 13, 1991. That agreement provIded that the mImstry would appomt to the classIfied servIce all mcumbents of Group 3 (l.e., seasonal) pOSItIOns of at least 43 weeks duratIOn if they satIsfied certam reqUirements as to theIr length of service. It also provIded that the contmuous servIce dates of those appomted pursuant to that agreement (the "rollover employees") would be calculated with reference to theIr seasonal semonty accrued under Article 3 20 1 Ordmanly, Article 3 20 1 (now 32 4 1) only governed lay-offs from, recalls to and other terms and condItions of employment as an unclassIfied seasonal employee Tills special agreement about the calculatIOn of the rollover employees' contmu- ous servIce dates generally gave those employees more generous credIt for theIr prIOr unclassIfied seasonal employment than they would have receIved under clause 25 1(b), whIch would otherwIse have governed the calculatIOn. In August 1991 the umon filed a gnevance allegmg that the employer was breachmg ArtIcle 25 of the collectIve agreement by calculatmg contmuous servIce dates dIfferently for rollover employees than for other appomtees After that gnevance was filed and before It became the subject of a hearmg, the partIes set tIed the terms of theIr 1992/93 collectIve agreement. ArtIcle 25 1 was amended WIth the 1992 amendments emphaSIzed, ArtIcle 25 1 then read as follows - 5 ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25.1 Effectwe February 3, 1992, an employee's length of contmuous servIce will accumulate upon completion of a probatIOnary perIOd of not more than ntne (9) months and shall commence (a) from the date of appomtment to the ClassIfied ServIce for those employees WIth no pnor servIce m the OntarIo Pubhc ServIce, or (b) effectwe January 1, 1992, from the date establtshed by adding the actual number of full-ttme weeks worked by a full-time unclasstfied employee during hts full-ttme employment back to the first break m employment whwh is greater than thtrteen (13) weeks, or (c) for a regular part tune civil servant, from January 1, 1984 or from the date on which he commenced a perIOd of unbroken, part-time employment in the pubhc service, immechate1y prIOr to appomtment to a regular part tIme positIOn m the civil servIce, whIchever is later; or (d) effectwe January 1, 1984, from the date establtshed by adding the actual number of full-ttme weeks worked by a full-ttme seasonal employee dunng htS full ttme employment back to the first break tn employment whwh tS greater than thirteen (13) weeks "Unbroken servIce" 18 that whIch is not mterrupted by separation from the public service, "full-tune" is continuous employment as set out in the hours of work schedules for the appropnate classIfications, and "part-tune" is contmuous employment in accordance wlth the hours of work specIfied m Artlcle 61 1. Effectwe December 20, 1990, any leaves-of-absence granted under Arttcles 3.9 and 3.35 shall be mcluded tn the calculatwn of length of contmuous servwe, After the 1992/93 agreement was settled, (as I noted m Cragg and others, 2854/96 (Apnl 23, 1997)) the mImstry reVIewed the work lustory of employees (other than rollover employees)' who had been appomted m prIOr years WIth a history of pnor unclaSSIfied employment that the mmIstry regarded as "sea- sonal." It recalculated those employees' contmuous servIce dates where and to the extent It felt that subparagraph 25 1(d) applIed to them. As a result, some employees (mcludmg some of the gnevors m Cragg and others) were assIgned earlIer contmuous service dates than the ones WIth whIch they had orlgmally been credIted under the prevIOUS language of 25 1(b), thus glvmg them greater semonty The umon gneved agam, takmg the pOSItIOn m that and the ongomg 1991 gnevance that the contmuous servIce dates of the rollover employees should also have been recalculated m accordance WIth clause 25 1(d) once It be- - 6 came effectIve The employer took the posItIOn that the rollover agreement con- tinued to govern the calculatIOn of the rollover employees' contmuous servIce dates after the partIes entered mto the 1992 93 collectIve agreement. The em ployer's posItion prevaIled on thIS pomt. Uman Gnevance, 1526/91 (Septem- ber 28, 1995, Kaplan) As I note later, the partIes are m dispute about how the 1992 amend- ments affected someone who had been appomted prIOr to 1992 If some but not all of hIS or her prIor full-time unclassIfied employment had been as a seasonal em- ployee. It is common ground, however, that in the perIod following those amendments there were two formulas for calculatmg the contmuous servIce date of classified employees whose pre-appomtment full-time unclassIfied employ- ment had been entirely non-seasonal. One was the formula m the pre-1992 ver- sion of clause 25 1(b) (hereafter sometimes referred to as "old (b)") That formula contmued to govern the semorIty of those appomted prIor to 1992 The other formula was the new one set out m clause 25 1(b) of the 1992/93 agreement ("new (b)") It governed the calculatIOn of seniorIty of those appomted in and af ter 1992 A break m employment of 13 weeks or less precluded credIt for any precedmg full-time unclassIfied servIce under the old formula, but not under the new one. The provIsIOns of Article 25 1 were carrIed over unchanged mto the memorandum of settlement of March 29, 1996, by wruch the partIes settled the terms of theIr 1994/98 collectIve agreement. On May 23, 1996, however, the par- tIes entered mto a further agreement that provIded, m part, that 1 The partIes agree that the pnncIp1es of ArtIcle 25 1(b) shall apply m cases of GO Temp employees appomted to the classIfied staff, 2, The parties agree that Article 25 1(b) apphes to all employees rrrespectIVe of date of appomtment to the classIfied servIce. At some time thereafter, the partIes prepared a revIsed document m whIch the prOVISIOns of the partIes' March 29, 1996 memorandum of settlement were rear ranged, renumbered and otherwIse edIted to form collective agreement docu - 7 - ments that the parties agreed would be the officIal, effective versIOns as of Feb- ruary 17, 1997 ArtIcle 181m this new document reflects the results of the agreement of May 23, 1996 on what was formerly ArtIcle 25 1 ARTICLE 18 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 18.1 An employee's length of contmuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence. (a) from the date of appomtment to the Classified Service for those employees WIth no prior servIce in the Ontano Pubhc ServIce, or (b) from the date estabhshed by addmg the actual number of full trme weeks worked by a full trme unclassIfied employee during his full trme employment back to the fIrst break m employment whIch IS greater than thIrteen (13) weeks, or (c) for a regular part tune CIvil servant, from January 1, 1984 or from the date on whIch he commenced a period of unbroken, part time employment in the pubhc servIce, rmmemate1y pnor to appointment to a regular part time position m the CIvil servIce, whIchever is later; or (d) effective January 1, 1984, from the date estabhshed by addmg the actual number of full-tune weeks worked by a full-trme seasonal employee durmg hIS full tune employment back to the first break m employment WhICh is greater than thIrteen (13) weeks. "Unbroken service" IS that WhICh IS not mterrupted by separatIOn from the pubhc servIce, "full tIme" is contmuous employment as set out m the hours of work schedules for the appropnate classIficatIOns, and "part trme" IS contmuous employment m accordance WIth the hours of work specIfied m ArtIcle 58.1 (Hours of Work) Effective December 20, 1990, any leaves-of-absence granted under Article 31 9 (UnclassIfied Employees - Pregnancy and Parental Leave) and 32.19 (Seasonal Employees - Pregnancy and Parental Leave) shall be mcluded m the calculation of length of contmuous servIce. I should perhaps note that I am not called upon here upon to resolve any dIspute about what employment was "seasonal" wIthm the meanmg of ArtIcle 18 l(d) and Its predecessor ArtIcle 32 2, prevIOusly artIcle 3 18, defines a "sea- sonal employee" as an employee appomted for a perIOd of at least 8 consecutive weeks to an annually recurrmg full tIme pOSItIOn m the unclassIfied servIce The Pubhc Sermce Act regulatIOns define a Group 3 unclassIfied employee as one "appomted on a seasonal baSIS for a period of at least eIght consecutIve weeks but less than twelve consecutive months to an annually recurrmg POSItIOn", 8 - where the contract provIdes that the employee IS to work full tIme hours. That defimtIOn was added to the regulatIon by 0 Reg 24/86 PrIor to that there was no Group 3, and Group 2 consisted of "employees employed on a project of a sea sonal or recurrmg kmd that does not reqUIre the employees to be employed on a full-tIme year round basis." After 0 Reg 24/86, Group 2 consIsted of those em- ployed on a project of a recurrmg kmd for fewer than 12 months eIther on a part- tIme basIs or for fewer than 8 weeks on a full-tIme basIs The Guthrie Grievance The facts on whIch the partIes agree and the posItIons they take wIth re- spect to Mr GuthrIe's grIevance are as follows. 1 Mr Wilham Guthrie is a Forester 2B employed by the MmIstry of Natural Resources m Chapleau, 2. The gnevor's employment history is as follows A) Nov 13/84 Jan 25/85 Group 2 B) J an 26/85 Feb 3/85 BREAK C) Feb 4/85 Mar 7/86 Group 2 D) Mar 8/86 Apr 13/86 BREAK E) Apr 14/86 Dec 19/86 Group 3 F) Dec 20/86 Jan 20/87 BREAK G) Jan 21/87 Dec 19/87 Group 3 H) Dec 20/87 Jan 17/88 BREAK I) J an 18/88 Oct 2/88 Group 3 J) Oct 3/88 appomted to classified PM 15 management posItIon 3 As the gnevor was appomted to a management posItIOn, the Employer credIted the gnevor wIth a contmuous servIce date of Jan 18/88 (begmnmg of unbroken full tune servIce Immechately pnor to appomtment) 4. As a result of CECBA Reform, the gnevor's posItIOn was transferred to the 7th bargaming umt m Feb 1994, and subsequently to the OPSEU bargammg umt as a Forester 2B m May 1995 5 The partIes agree that the gnevor s contmuous servIce date IS to be calculated as If he was appomted to the classmed servIce (per ArtIcle 18) m the OPSEU bargammg umt on October 3, 1988, The fact that hIS appomtment was first to a management pOSItIOn IS Irrelevant to the questIOn of appl1catlOn of ArtIcle 18 m thIS case - 9 - 6. Upon hIS transfer into the OPSEU umt In 1995, the Employer calculated hIS contInuous servIce date In accordance wIth ArtIcle 25 l(d), gIVIng hun credit for only Group 3 contracts (that IS, for contracts E, G AND I), and no credIt for Group 2 contracts, The Employer assIgned a contInuous servIce date of July 1, 1986. 7 The partIes agree that durIng all unclassIfied contracts the gnevor worked exclUSIVely full tune hours. 8. The parties agree that there were no breaks In the gnevor's unclassified employment In excess of 13 week. 9 The parties agree that ArtIcle 18, 1 (d) reqUIres credit solely for Group 3 seasonal unclassified servIce. 10 It is the Employer's pOSItIOn that Article 18.1(d) IS the appropnate, and Indeed the only, authOrIty for calculatIng the gnevor's contInUOUS servIce date. 11 The parties agree that should the grIevance be demed In its entIrety, then the grlevor can only be credited WIth Group 3 seasonal unclassmed servIce under Article 18.1 (d), in which case the gnevor would only be entitled to credit for contracts E, G and I (as per paragraph # 6 above) 12. It 18 the Umon's pOSItIon that the grievor IS entItled to creillt under eIther Article 18.1(b) or Article 18.1(d), whIchever prOVIdes the greater entItlement. In thIS case, the Union contends that the grIevor ought to have receIved creillt under ArtIcle 18.1 (b) 13 The Employer ills agrees that the gnevor can access ArtIcle 18,1 (b) In the event that the Board determines that he can, then the Employer takes the pOSItion that ArtIcle 18.1 (b) reqUIres creillt only for certaIn full tune Group 1, 2 and 4 unclassIfied servIce, and that therefore the gnevor would only be entitled under 18.1 (b) for contracts A and C ThIS would represent a lesser benefit than credIt under Article 18.1 (d) as outhned In paragraph #11 above. 14, It IS the Union's pOSItion that ArtIcle 18.1 (b) allows for credIt for all full tune unclassIfied servIce, meanIng Groups 1, 2 3 and/or 4 and that therefore the grievor would be entItled to credIt for all contracts (A, C, E, G and I) The Nguyen-Black Grievance The facts on whICh the partIes agree and the pOSItIOns they take WIth re- spect to Ms Nguyen-Black's grIevance are as follows. 1 Ms Nguyen Black IS a Systems Officer 2 employed by the MInIstry of Natural Resources In CambrIdge. 2, The gnevor s employment hIstory IS as follows. A) Jan 12/87 Apr 3/87 Group 1 B) Apr 6/87 Dec 11/87 Group 3 C) Dec 14/87 Jan 10/88 BREAK 10 D) Jan 11/88 Dec 7/88 Group 3 E) Dee 12/88 J an 8/89 BREAh. F) Jan 9/89 May 22/89 Group 3 G) May 23/89 Oct 27/89 Group 1 H) Oct 30/89 Mar 30/90 Group 1 1) Apr 2/90 Oct 28/90 Group 1 J) Oct 29/90 appomted to full tune classIfied staff 3. The partIes agree that dunng all unclassIfied contracts the gnevor worked exclusIvely full tune hours, 4. The parties agree that there were no breaks in the gnevor's unclassIfied employment in excess of 13 week. 5 When the gnevor was appointed to the full tune classIfied servIce on October 29, 1990, the Employer assIgned a contmuous service date pursuant to then Article 25 1(b) of January 9, 1989 (begmning of unbroken full tune service unmedIate1y pnor to appoin tmen t; commencement of contract F) 6. WIth the 1992 collectIve agreement, the Employer applied Article 25. 1 (d) even though the gnevor had not been appomted drrect1y from a Group 3 seasonal contract. The MmIstry concedes that thIS was an error The Umon does not dispute the MmIstry's position that thIS was an error The parties agree that no weIght should be gIVen to the fact that any indIVIdual was granted semonty m error 7 In 1996. the Employer apphed ItS interpretatIOn of the ChITo-Leeb agreement (and subsequent FIsher award) and assIgned a contmuous servIce date of March 27, 1989 (credItmg only Group 1 servIce m contracts A, G, H and I). 8, It IS the Employers pOSItIOn that ArtIcle 18,1(b) reqUITes credIt only for full tune Group 1,2 and 4 unclassIfied servIce. 9 The partIes agree that should the gnevance be demed, the contmuous service date of the gnevor would mclude credIt only for contracts A, G, H and I 10. It IS the Umon's pOSItIOn that ArtIcle 18, 1 (b) requITes credIt for full tune weeks worked by a full-tune unclassIfied employee irrespectIve of whIch group of unclassIfied servIce they were appomted to, that IS, Article 18, 1 (b) allows credIt for Group 1 2, 3 and/or 4 unclassIfied servIce 11 The partIes agree that should the gnevance be allowed, the contmuous servIce date of the gnevor would mclude credIt for contracts A, B, D, F, G, H and I The "ChIro-Leeb agreement" to whIch paragraph 7 refers IS the agreement of May 23, 1996, m whIch the partIes agreed that "ArtIcle 25 1(b) applIes to all employees IrrespectIve of date of appomtment to the classIfied servIce" The "FIsher award" to whIch paragraph 7 refers IS a fIghts arbItratIOn deCISIOn of -11 Vice-ChaIr FIsher (Uman Gnevance, 487/96 (July 24, 1996)), whIch dealt wIth a gnevance m whIch the partIes' dIspute was pnmanly about the ImplementatlOn date of the agreement of May 23, 1996 By way of clanficatlOn of paragraph 6, the union's advocate explamed that whIle the parties agree that the employer had erred m calculatmg the grievor's contmuous servIce date in 1992, they dIsagree about what the error was. The Union says that after the 1992 amendments, the contmuous date of someone ap- pomted pnor to 1992 was to be calculated in accordance wIth eIther the pre-1992 language of clause (b) or the new language of clause (d), whichever was more fa- vourable for the employee, and that the employer's error here was m calculatmg the correct date. The employer says that the error was that clause (d) could not be apphed to someone whose last unclassified employment pnor to bemg ap- pomted to the classIfied service was not as a seasonal employee Argument The uruon observes that prior to 1992, appomtees were given credIt for any pnor unclassIfied employment that satisfied the language of old (b), wIthout regard to whether that pnor unclassIfied employment was seasonal, non- seasonal or a combmatlOn. It says that the 1992 amendments SImply mtroduced a formula that was less restrictive m ItS treatment of unclaSSIfied service that preceded short breaks in employment. It submIts that the new clause (b) applied the less restnctive formula to all prlOr full-time unclassified service, seasonal and non-seasonal, but only prospectively, for new appointees New clause (d) made the less restnctive treatment of breaks m employment available both pro- spectively and retrospectively to those appomted m and after 1984 (other than rollover employees, as It turned out), but gave credIt only for pnor full-time un claSSIfied employment that was seasonal m nature The Union notes that the fact that clause 18 l(c) IS expressly apphcable - only to appomtees to part tIme claSSIfied POSItiOns does not mean that (b) IS un- avaIlable to such appomtees Both clauses were and are aVailable to appomtees - 12 to part-tIme classIfied positions, who are entItled to the benefit of whIchever clause gives the most favourable result in theIr cIrcumstances Koss, 781/95 (No- vember 1, 1996, MIkus) and Scott, 1434/96 (AprIl 2, 1997, Gray) The umon ar gues that after the 1992 amendments, both old (b) and new (d) were simIlarly avaIlable to those who had been appointed prior to 1992, and that at that pomt those employees were entitled to the benefit of whichever clause gave them the more favourable result. For those who had prior seasonal employment, there were cIrcumstances in wruch new (d) was more benefiCIal than old (b) The umon submIts that when the May 1996 amendments were made, new (b) became avaIlable to all employees. Those appomted prIOr to 1992 then had both new (b) and new (d) avaIlable to them and, agam, employees were entItled to the benefit of whichever clause gave them the more favourable result. Clause (d) became es- sentIally redundant, however, because there were no cIrcumstances In which new (d), which gIves credIt only for prior seasonal service, could be more benefiCIal than new (b), wruch (m the union's submISSIOn) gIves credit for both seasonal and non-seasonal prior servIce. The union submIts that the language m questIOn does not support the re- strICtIOns contended for by the employer, that notrung m eIther clause (b) or clause (d) says that appomtees WIth prIOr seasonal employment can only have resort to (d) A "seasonal employee" IS an unclassIfied employee Notrung In the language of either (b) or (d) supports the proposItIOn that the words "unclassIfied employee" m (b) mean "unclaSSIfied employee other than a seasonal employee." The umon notes that the partIes have made express dlstmctIOns between sea- sonal and other unclassIfied employees elsewhere m the collective agreement. It argues that the partIes would have saId "unclassIfied employee other than a sea- sonal employee" If that had been what they meant. The umon also notes that If the employer's mterpretatIOns of clauses 18 1(b) and (d) are correct, the 1992 amendments and the May 1996 agreement would each have reduced the eXIstmg semorIty of claSSIfied employees m certam CIrcumstances ThIS would be so for someone appomted pnor to 1992 after hav- 13 mg had an unbroken serIes of consecutIve unclassIfied contracts, some seasonal and some not, for which credIt would have been gIven under old (b) If thIs hypo- thetIcal employee's last such unclassIfied contract had been seasonal then, on the employer's mterpretatIOn, there would have been a forced recalculatIOn of that employee's seniorIty m 1992 under what was then ArtIcle 25 l(d) That calcula- tion would have deprIved the employee of the credIt prevIously receIved under old (b) for those portions of lus or her contmuous prIor servIce wluch were non- seasonal. If the hypothetIcal employee's last unclassIfied contract at the tIme of lus or her pre-1992 appomtment was not seasonal then, on the employer's mter- pretatIOn, the effect of recalculatIOn under new (b) pursuant to the partIes' May 1996 agreement would have been to deprIve that employee of the credIt previ- ously received for those portions of hIs/her prIor unclassified servIce which were seasonal. The union argues that none of the parties' agreements should be inter- preted as reducmg an employee's eXIstmg semority unless It is clear from the language of the agreement that that was the intent. The UnIon notes that in Scott, supra, the Board reJected an mterpretatIOn of new (b) that would have had the effect of reducmg semorIty preVIOusly acqUIred under old (b) The employer argues that wherever possible, contract language should be mterpreted so as to have some meanmg It says that the umon's mterpretation VIolates that prmciple by readmg clause 25 l(d) out of the collectIve agreement. It notes that the language of clause 25 l(d) contmued as clause 18 l(d) m the re- vIsed collectIve agreement document that came mto effect m February 1997 Notmg also the umon's argument that a reductIOn of semorIty rIghts reqUIres clear language, the employer argues that the umon's mterpretatIon Improves the semorIty rIghts of some employees, thereby negatIvely Impactmg the relatIve - semorIty rIghts of others. Observmg that the May 1996 agreement referred to Go Temps but not to seasonal employees, the employer submIts that If the partIes had mtended to read clause 18 l(d) out of the agreement they should have used language that more clearly expressed that mtentIOn. Reference was made to the 14 "FIsher award" at page 4, where VICe-ChaIr FIsher saId thIS wIth reference to the agreement of May 23, 1996 However, clearly the partIes have sIgnalled theIr mtentlOn to mstItute a smg1e seniOrIty formula for persons appomted to the classIfied servIce WIth prIor full tune (non-seasonal) unclassIfied servIce, The employer says this comment reflects a belief on the part of Vice-ChaIr FIsher that the collectlve agreement as modIfied by the agreement of May 23, 1996 cre- ated a smgle system for calculatmg contmuous servIce dates that dId not apply to seasonals or to seasonal servIce. It acknowledges, however, that such a com- ment would have been obaer d."cta m the circumstances of the dIspute before hIm. The employer agrees WIth the union that at one tlme there was a smgle manner in whIch credIt was gIven for unclassIfied servIce ImmedIately prior to JomIng the clasSIfied servIce. It mVItes me to conclude, however, that the amendments the parties made thereafter "carved out" dIfferent groups of em- ployees and proVIded specifically and dlstmctly fot how and to what extent those groups were to be gIven credIt. It says that for seasonal employees tills occurred m the 1992 amendments It mVItes me to conclude that the addItIOn of an ex- press prOVISIon for seasonal employees m clause 25 l(d) ImplIedly excluded sea- sonal employees from clause (b) It says it should not be surprising that seasonal employees were treated dIfferently, as the partIes have prOVIded m what are now Articles 30, 31 and 32 that seasonal employees would be treated differently from other unclassIfied employees m other respects Havmg submItted that only (d) IS avaIlable to seasonals and only (b) IS avaIlable to non-seasonals, the employer says that the category mto whIch any partIcular appomtee falls IS determmed by lookmg at what sort of unclaSSIfied - employee he or she had been m the nanosecond prior to the appomtment. ThIS, It argues, depends on whether the employee's last unclaSSIfied contract prior to the appomtment was seasonal or otherwIse The employer submIts that the baSIS for thIS "last nanosecond" test IS to be found m the reference to "seasonal employee" 15 - m clause 18 l(d) In addItion, It submIts that the only sort of full-time unclassi- fied employment for wluch there could be credit under clause (d) IS seasonal em- ployment and that, by ImphcatIOn, there could be no credIt for any peflod of sea- sonal employment under clause (b) Decision It would not matter whICh of the interpretations m Issue here IS correct If there were no employees who, hke the gflevors, had both seasonal and non- seasonal unclassIfied employment m theIr pre-appomtment lustory For those whose pre-appomtment employment was only seasonal, It would not have mat- tered whether calculatIOn under clause (d) was compelled or optIOnal m and after 1992, because for them a calculatIOn under clause (d) could not have been less favourable than one under eIther old (b) or new (b) For those whose pre- appomtment lustory included no seasonal employment, on the other hand, clause (d) would have had no attraction and they would be unaffected If new (b) exclude seasonal servIce prevIously credited under old (b) The essential problem, then, IS how artIcle 18 1 apphes to persons wIth both seasonal and non-seasonal full-time unclaSSIfied employment m theIr pre- appomtment lustory VIce-ChaIr FIsher was not called upon to address that problem m the deCISIOn of July 24, 1996 to whIch the employer referred m argu- ment. Accordmgly, if there are any remarks m that decIsIOn that may appear to speak to Issues raIsed before me, they cannot be treated as determmatIve of those issues As a result, I do not need to deCIde whether any remarks in that de- CISIOn do support the employer's posItIOn on those Issues The employer's submIssIons use both the word "seasonal" and Its negatIve m two dlstmct ways. to describe the servIce for whICh credIt IS to be gIven and to describe the person to whom credIt IS to be gIven. On ItS VieW, clause (d) applIes only to a person who can be saId to have been "seasonal" when appomted, and - gIVes credIt only for servIce whIch was "seasonal" at the time It was performed, whIle clause (b) apphes only to someone who can be sald to have been "non- 16 - seasonal" when appomted and gIves credIt only for servIce WhIch was "non- seasonal" at the tIme It was performed The employer and the UnIon agree that m applymg clause (d) It IS neces- sary to determme whIch parts of an appomtee's past unclassIfied employment were "seasonal", because that clause only gIves credIt for seasonal employment. In my VIew, trus shared mterpretatIOn follows from the language of the clause only If, as the Union argues, the word "seasonal" m the phrase "full-time weeks worked by a full-time seasonal employee durmg hIS full time employment" refers to the nature of the mdIVIdual's employment during the weeks of servIce for wruch credIt IS sought. The employer says, however, that applIcatIOn of clause (d) IS further lIm- Ited to those who could be saId to be "seasonal" at the time the calculatIOn IS made It relIes on the smgle reference to "seasonal employee" m clause (d) m support of that claIm. I note that the calculatIOn contemplated by ArtIcle 18 1 and ItS predecessor ArtIcle 25 1 IS only made for someone who has been ap- pomted to the classIfied service and has completed the probatIOnary perIOd, at a time when he could not otherwIse be described as "seasonal." A "seasonal em ployee" IS an employee m the unclaSSIfied servIce The employer responds to this by saymg that one must look at the sItuatIOn Just before appomtment to deter- mme whether the mdlvldual was "seasonal" or otherwIse for purposes of trus test. Clause (d) contemplates gIvmg credIt for servIce pnor to breaks m employ- ment of 13 weeks or less, however, so an mdIVldual who was not an employee Immediately pnor to rus or her appomtment mIght stIll be entItled to credIt for prIOr servICe The employer IS thus drIven to say that thIS status questIOn IS to be answered by reference to the employee's last unclaSSIfied employment pnor to appomtment. The dIfficulty WIth the employer's claIm that there IS thIS second seasonal status test m clause (d) IS that there IS no support for It m the language of the - clause, once one takes mto account the agreed propOSItIOn that that same Ian guage lImIts credIts to servIce that was seasonal at the tIme It was performed - 17 The words "full-time seasonal employee" lend support to the agreed lImItatIOn. If those words refer mstead to some status the mdIvIdual had at the tIme of ap- pomtment, however, then "full-tIme weeks worked by a full-tIme seasonal em- ployee during his full time employment" would logIcally refer to all full-time weeks, seasonal or otherwIse, prevIously worked by a person WIth that status In other words, that mterpretatIOn of the words "full-time seasonal employee" leaves the lImItation of credits to seasonal servIce unsupported by the language of the clause. The words "full-time seasonal employee" sImply cannot do double duty m clause (d) m the manner thIS aspect of employer's argument necessarIly requires. I find that the only "seasonal" lImItatIOn m the language of clause 18 l(d) IS a limIt on the nature of the employment for whICh there can be credIt. Turning to clause 18 1(b), if ItS language IS gIven ItS ordmary meaning, WIthout regard to any implIcation wluch mIght arise from the other clauses of ArtIcle 18 1, then any appoIntee (even one whose last pre-appomtment unclassI- fied employment was seasonal) would get credIt for prior full-time unclaSSIfied servIce of any sort, seasonal or non-seasonal, back to the first break m employ- ment of more than 13 weeks. The employer says that lImItatIOns on who and what could be credIted under that clause arose by ImplIcatIOn when a clause whICh proVIded for "seasonals" was added. A SImIlar argument was made in Koss, supra, WIth respect to the relatIOn- slup between clause (c) and old (b), and In Scott, supra, WIth respect to the rela- tIOnshIp between clause (c) and new (b) In both cases the argument was that be- cause (c) expressly applIed only to those appOInted to the part-time classIfied servIce, such appomtees were ImplIedly excluded from the benefit of clause (b) The argument was rejected In both cases. I observed In Scott at page 22 that Clause (c) uses specIfic language to lumt Its applIcatIOn to part tIme CIvIl servants, If the partIes had mtended to srmilarly lumt the applIcatIOn of clause (b) to full tIme CIVIl servants, they could have mcluded correspondmg language m clause (b) The fact that the partIes chd not do so m the pre-1992 verSIOn of clause (b) led the Board to conclude m J{oss, supra, that any appomtee to the classIfied servIce could resort to (b) m calculatmg her length of contmuous servIce, regardless ""hether her appomtment was to a full tIme or a part trme pOSItIOn. The dIfferences between the pre-1992 and current 18 - verSlOns of clause (b) do not appear to dlmmish the apphcabihty of that reasonmg The same reasomng apphes here ArtIcle 31 1 of the partIes' collective agreement reads 31 1 Articles 31 2 to 31 16 apply only to unc1assmed employees other than seasonal, student and GO Temp employees. Article 3 16 of the partIes' 1989/91 and 1992/93 agreements began wIth these words. 3 16 The followmg Articles shall also apply to unclassmed staff other than seasonal employees: It IS apparent that the partIes knew how to say "unclassIfied employees other than seasonal employees" when that IS what they meant. The fact that they dId not say "full-time weeks worked by a full-time unclassIfied employee other than a seasonal employee" in new (b) when they added clause (d) m 1992 suggests that the partIes dId not mtend to exclude seasonal servIce from the calculatIOn contemplated by new (b) The employer contends that new (b) apphes only to an appomtee whose last pre-appomtment unclassIfied contract was non-seasonal. Insofar as trus IS saId to follow by necessary imphcatIOn from a correspondmg hmltatIOn m clause (d), that basIs for It falls wIth my earher findmg that there IS no such corre- spondmg hmItatIOn. Further, clause (c) Illustrates that the partIes knew how to express a lImItatIOn based on the appomtee's status at the time of appomtment. Agam, that weIghs agamst Implymg any such hmItatIOn. Moreover, the partIes clearly saId m paragraph 2 of the May 23, 1996 that they mtended clause (b) to apply to "all employees" They could have expressly hmIted the employees to _ whom (b) would apply, by reference to the nature of theIr pre-appomtment em ployment, but dId not. The employer's mterpretatIOn unduely strams the language of the clauses m Issue In addItIOn, as the umon noted m argument, ItS apphcatIOn would also - 19 - cause some employees to lose seniorIty wIth whICh they had prevIously been credIted The sIgmficance of such an outcome, and the employer's response that on the umon's VIew the relatwe semorIty of some employee's would be adversely affected, were both addressed III Scott, supra, at pages 20 and 21 There IS a well-estabhshed arbitral rule of collectIve agreement mterpretatlon that "an employee's semorIty should only be affected by very clear language m the collectIve agreement concerned and that arbitrators should construe the collective agreement WIth the utmost strIctness whenever It IS contended that an employee's semonty has been forfeited, truncated or abridged under the relevant sectIOns of the collectlve agreement" Be U E. W, Local 512 and Tung-Sol of Canada Ltd., (1964), 15 L.AC 161 (Reville) ThIS princIple IS apphed m assessmg the effect of amendments to a collectlve agreement: Re Dufferin Peel Roman Catholtc Separate School Board and AssocLatwn of Professwnal Student Sermces Personnel (1995), 48 L.A.C (4th) 316 (M. G Picher) When the partles amend therr collectlVe agreement, they are presumed not to have intended to take away any of the employees' accrued senionty unless the language they used clearly demonstrates that they had such an mtentIOn. At issue here is the combined effect of two amendments the 1992 amendment of clause (b) with prospectIve effect, and the 1996 amendment requiring retrospectIve recalculatIOn of contmuous servIce dates estabhshed pnor to 1992. The presumptlon agamst abrIdgement of semonty nghts mIght not have figured strongly, or at all, m an mterpretatIOn of the language of clause (b) as It read before May 1996. It d1d not then affect the semonty of anyone who already had semorIty when It was mtroduced. The parties apparently did not come mto conflIct over mterpretation of the clause, however, before they agreed on May 23, 1996 to further amend the new language so that It applied to pre.1992 appointees. Apphed to that latter agreement, the presumptIOn agamst abrIdgement of semorIty nghts bears apphcatIOn m determming what the parties must be taken to have understood the new language to mean. Havmg mandated a recalculatIOn, the partIes must have antICIpated that the contmuous servIce dates of some employees would change. At very least, they must have expected that some employees appomted pnor to 1992 would be cred1ted WIth more of therr unclassIfied servIce than they had been or should have been under the pre.1992 language of clause (b) Of course that would unprove therr semonty standing re1atlve to other employees with whom they mIght compete for pOSItions m matters of promotIOn, bumpmg and recall, Exammmg the matter from the perspectIve of those other employees, one could be say that the parties must have antICIpated that the relatwe semonty standmg of some employees could be adversely affected by recalculatIOns mandated by the 1996 agreement. It IS not eVIdent from the mere fact of therr havmg agreed to a retrospectIve recalculatIOn, however, that the partIes antICIpated or mtended that the actual, absolute amount of any employee's semonty or length of contmuous servIce could thereby be reduced, thereby reducmg or even ehmmatmg the employee s entitlement to termmatIOn payments, It IS not clear from the language they used that the parties mtended to reduce any employee s accrued semonty In a choIce between an otherwIse plausIble mterpretatlOn that has that effect and one 20 - that does not, the presumption to which I have referred favours the mterpretatlOn that does not reduce any employee's accrued semOrIty Although addressed to a dIfferent problem of mterpretatIOn under ArtIcle 18 1, that analysIs bears applicatIOn here. It IS common ground that the additIOn of clause (d) m 1992 and the extensIOn of new (b) m 1996 to "all employees Irre- spective of date of appomtment to the claSSIfied servIce" were each mtended to result m a retrospectIve recalculatIOn of some employees' contmuous servIce dates. It follows that the partIes mtended any consequent change in relatIve semonty As I observed mScott, however, It does not follow that the partIes an- tiCIpated or mtended that the actual, absolute amount of any employee's senior- Ity or length of contmuous service could be reduced as a result. It IS not clear from the language they used that the partIes mtended to reduce any employee's accrued semonty, thereby reducmg or even elImmatmg entItlements to termma- tIon payments. In a chOIce between an mterpretatIOn that has that effect and one that does not, the presumption to wh~h I referred m Scott favours the mterpre- tatIOn that does not reduce any employee's accrued semonty The umon's mterpretatIOn does have as a consequence that the agreement of May 23, 1996, by extendmg clause (b) to "all employees," depnves clause (d) of any ongomg sigmfiance. Wlule this feature of It may weIgh agamst the umon's mterpretatIOn, the conSIderatIOns to whIch I have already referred weIgh far more strongly agaInst the employer's mterpretatIOn and m favour of the umon's With reference to the Issues of general applIcatIOn IdentIfied earlIer, I therefore conclude that 1 An employee whose last unclaSSIfied employment prIOr to bemg appomted was as a "seasonal" employee IS not precluded from havmg hIS or her contmuous servIce date calculated under clause 18 1(b) 2 Full-time weeks worked as a seasonal employee are mcluded m the "full time weeks worked as a full time unclaSSIfied employee" for whIch credIt may be gIVen under clause 18 1(b) - 21 The grIevors' contmuous servIce dates were not calculated in a manner conSIS- tent WIth these conclusions Accordmgly, these grIevances are allowed. Remedy I declare that each of the grlevors was and IS entItled to a contmuous servIce date that reflects credIt under clause 18 1(b) for all of the pre- appomtment unclassIfied servIce IdentIfied m the agreed statement of fact refer- able to hIS or her grievance I remam seIsed, as the partIes have asked, WIth any dIspute about what those dates are, m case the partIes are unable to agree on the mechamcs of the calculatIOn. The partIes say that there may also be a dIspute about whether, m the cIrcumstances as they have developed smce theIr grIev- ances were first asserted, the grIevors reqUIre or are entItled to some remedy be- yond a determinatIOn of theIr correct contmuous semce date At the parties' re- quest, I remam seIsed WIth that aspect of these proceedmgs as well. Dated at Toronto tills 30th day of May, 1997 ~~~