The URL can be used to link to this page

Home My WebLink About2004-3284.O'Leary.05-06-13 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-3284 UNION# G-95-04-ENF IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated TransIt Umon - Local 1587 (O'Leary) Union - and - The Crown m RIght of Ontano (Greater Toronto TransIt Authonty/GO TransIt) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Gary Hopkmson Green & Chercover Barnsters and SOlICItorS FOR THE EMPLOYER DavId Damels Miller Thomson LLP Barnsters and SOlICItorS HEARING May 25 2005 2 DeCISIon Terry O'Leary has gneved hIS placement on the semonty lIst. His complaInt anses from the employer's actIOn In correctIng an error made In determInIng the semonty date of another employee, Thanh Hillyard. The correctIOn of thIS error gave Ms Hillyard a semonty date earlIer than Mr O'Leary's ContendIng the error should not have been corrected, the umon relIes upon the language of the collectIve agreement and, In the alternatIve, the doctnne of estoppel I Terry O'Leary and Thanh Hillyard both work as full-tIme customer attendants The backdrop for thIS gnevance about theIr relatIve semonty IS descnbed In the folloWIng agreed statement of facts 1 On May 9 2000 the partIes reached an agreement to reVIse the system of semonty calculatIOns for certaIn purposes as defined In an Agreement and a Letter of Intent of that date 2 One half of the semonty calculatIOns anSIng from these documents were performed by representatIves of the umon and one half were performed by management 3 The partIes antIcIpated that there may be some errors In calculatIOn and therefore reqUIred both partIes to approve all of the calculatIOns and a date was establIshed for employees to challenge theIr IndIVIdual calculatIOns 4 The classIficatIOn semonty of Thanh Hillyard was Inadvertently Incorrectly calculated as October 2, 1993 The correct calculatIOn should have been January 24 1993 5 The partIes both approved the Incorrect calculatIOn ofMs Hillyard's semonty 6 NeIther party nor Ms Hillyard challenged the Incorrect calculatIOn of her semonty pnor to June 9 2000 Ms Hillyard was sent a notIce WIth respect to her semonty calculatIOn by the employer and the umon wIth her semonty of October 2, 1993 attached. Ms Hillyard dId not approach the umon or employer pnor to June 9 2000 to bnng any problem wIth the calculatIOn of semonty to theIr attentIOn, nor dId she request any correctIOn or adjustment to same pnor to June 9 2000 7 In 2004 the partIes agreed to permIt the applIcatIOn of classIficatIOn semonty to the selectIOn of ShIftS wIthIn the customer attendant classIficatIOn. 3 8 On October 28 2004 the employer Informed employees of theIr abIlIty to select ShIftS based on classIficatIOn semonty In a memorandum of that date The memorandum was accompamed by blank sIgn-up sheets and a semonty lIst. The semonty lIst showed Hillyard's classIficatIOn semonty as October 2, 1993 9 A BId Date for ShIft selectIOn was establIshed as November 16 2004 Pnor to thIS date, Ms Hillyard raised a complaInt that her classIficatIOn semonty as shown on the posted semonty lIst was Incorrect. 10 FolloWIng Ms Hillyard's complaInt, the partIes JOIntly InvestIgated her claim. The employer concluded that her classIficatIOn semonty should have been calculated as January 27 1993 11 The partIes dId not agree to reVIse Ms Hillyard's classIficatIOn semonty The umon does not take Issue that Ms Hillyard's classIficatIOn semonty date should correctly be January 24 1993 12 The employer Issued a dIrectIOn to management to correct Ms Hillyard's classIficatIOn semonty A copy of thIS dIrectIOn was passed to Rose McKInnon, a shop steward of the umon. 13 FolloWIng thIS dIrectIOn, Rose McKInnon conducted the "sIgn up" process, approachIng each affected customer attendant In order of semonty Ms McKInnon offered ShIft selectIOn preference to Ms Hillyard pnor to Mr T O'Leary (the gnevor) On the ongInally posted semonty lIst, Mr O'Leary had been lIsted wIth greater semonty than Ms Hillyard. Ms McKInnon's actIOns dId not constItute approval or consent by the umon to the employer's readJustment of Ms Hillyard's semonty to January 24 1993 14 The Employer assIgned ShIftS In accordance wIth the preferences recorded by Ms McKInnon. 15 Mr O'Leary filed the Instant gnevance folloWIng confirmatIOn of the ShIft assIgnments 16 There were no dIscussIOns between the partIes WIth respect to allowIng any further adJustment to the classIficatIOn semonty of employees made pursuant to the May 9 2000 agreement dunng bargaInIng for eIther the 2000-03 or 2003-07 collectIve agreements II I was referred to the folloWIng provIsIOns In the current collectIve agreement runmng from May 24 2003 to June 1 2007 7 1 (5) ClassIficatIOn Semonty Date ThIS date wIll reflect the last actual date that an employee commenced In a classIficatIOn whIch comes under the terms of the collectIve agreement subJect to the folloWIng 4 1 For an employee wIth permanent full-tIme status, thIS date reflects contInUOUS servIce In a bargaInIng umt posItIOn at a rate of 50% for employee's permanent part-tIme servIce and at a rate of 100% for employee's permanent full-tIme servIce or as determIned In the prevIOUS agreement, whIchever IS greater or as determIned by the partIes through a letter of Intent. 2 For an employee wIth permanent part-tIme status, thIS date wIll reflect the last actual date that an employee commenced In a classIficatIOn whIch comes under the terms of the collectIve agreement, or as determIned In the prevIOUS agreement, whIchever IS greater or as determIned by the partIes through a letter of Intent. 72(3) ClassIficatIOn semonty for the purposes of thIS agreement shall mean semonty held as of the effectIve date of thIS Agreement and thereafter as In accordance wIth ArtIcle 7 1(5) In the 2000-2003 collectIve agreement, artIcle 7.2(3) appeared wIth precIsely the same wordIng. ArtIcle 7 1(5) was sImIlar In some respects and dIfferent In others It stated For an employee wIth full-tIme status, thIS date reflects 50% of the employee's part-tIme servIce and 100% of the employee's full-tIme servIce For an employee wIth part-tIme status, thIS date IS the same as hIs/her Go TransIt Semonty Date As the 1996-1999 agreement pre-dated the system currently used to calculate classIficatIOn semonty that agreement contaIned no formula analogous to the one now found the first paragraph of artIcle 7 1 (5) A provIsIOn sImIlar to the current 7.2(3) was contaIned In 1996- 1999 agreement, also as artIcle 7 2(3) It stated ClassIficatIOn semonty for the purposes of thIS agreement shall mean, semonty held as of the effectIve date of thIS Agreement and thereafter the date of entry Into the classIficatIOn. Based upon these provIsIOns, the umon contends Ms Hillyard cannot challenge the semonty date mIstakenly assIgned to her In the spnng of 2000 Counsel for the umon submIts artIcle 7.2(3) of the current agreement. dIvIdes employees Into two categones (1) those hIred after the agreement came Into effect; and (2) all others New hIres are said to be governed by the formula, contaIned In the first paragraph of artIcle 7 1(5), applIed to the facts as correctly stated. The same formula applIes to everyone else, but they are barred from challengIng any factual errors made when the new system was put Into effect In 2000 AccordIng to thIS lIne of argument, the bar anses from the reference In artIcle 7.2(3) to classIficatIOn semonty meamng "semonty held as of the effectIve date of thIS Agreement." Counsel submIts thIS InterpretatIOn of these words IS consIstent WIth paragraph 6 of the memorandum of agreement, sIgned by the 5 partIes on May 9 2000 whIch stated "no adJustments" would be made to an employee's classIficatIOn semonty "after June 3 2000 unless mutually agreed." Counsel for the employer notes artIcle 7.2(3) has eXIsted In much the same form SInce at least 1996 long before the new approach to calculatIng classIficatIOn semonty came Into effect. Based upon thIS observatIOn, counsel suggests thIS artIcle was never Intended to prevent the correctIOn or errors made In 2000 He suggested the purpose of artIcle 7 2(3) In the current agreement IS to ensure that semonty dates establIshed under that agreement apply only to events occurnng dunng ItS term and not to those happemng before It came Into effect. Employer counsel also notes the letter of Intent, sIgned on May 9 2000 states the memorandum of agreement about classIficatIOn semonty would be Incorporated Into the next collectIve agreement "subJect to any mutually agreed to changes resultIng from the next collectIve agreement negotIatIOns" In thIS regard, counsel relIes upon the omISSIOn In subsequent collectIve agreements of any provIsIOn expressly precludIng the correctIOn of errors Counsel also contends artIcle 7 1(5) of the current agreement expressly permIts mIstakes to be corrected, by saYIng an employee's semonty date IS as determIned by the formula specIfied or as determIned In the prevIOUS agreement, "whIchever IS greater" NotIng Ms Hillyard's semonty accordIng to the formula IS greater than that attnbuted to her under the precedIng contract, counsel argues artIcle 7 1(5) entItles her to correct the error made In 2000 wIth respect to her semonty date In my VIew the words "semonty held as of the effectIve date of thIS Agreement" In artIcle 7.2(3) are ambIguous It IS far from clear thIS phrase was Intended to prevent the correctIOn of errors made In 2000 especIally as the very same language appeared In the 1996- 1999 agreement. The meamng of artIcle 7 1(5) IS more straightforward. AccordIng to thIS provIsIOn, an employee's semonty date IS the greater of that determIned by the specIfied formula and that determIned under the prevIOUS agreement. The most ObVIOUS reason for saYIng the greater measure of semonty would prevaIl IS to allow the correctIOn of an employee's semonty date prevIOusly set by mIstake at least where such a correctIOn would benefit the IndIVIdual In questIOn. It IS Important to note that umon counsel suggested no other reason for IncludIng thIS provIsIOn In the collectIve agreement. The precedIng analysIs leads me to conclude that the employer's actIOn In correctIng Ms Hillyard's semonty complIed wIth the reqUIrements of the collectIve agreement. In comIng to thIS conclusIOn, I realIze my InterpretatIOn of artIcle 7 1(5) of the 2003-2007 collectIve agreement IS at odds wIth the May 9 2000 memorandum of agreement whIch dId not 6 permIt semonty dates to be adJusted after June 3 of the same year The "whIchever IS greater" formulatIOn In artIcle 7 1(5) leads me to conclude the partIes, dunng negotIatIOns for the current agreement, retreated from theIr earlIer deal establIshIng a deadlIne for the correctIOn of errors Even though thIS change of approach was not dIscussed at the bargaInIng table, by both partIes sIgnalled theIr acceptance of It by sIgmng the agreement as presently worded. III Counsel for the umon contends the employer IS estopped from enforcIng ItS InterpretatIOn of the collectIve agreement, because management represented to the umon that the deadlIne establIshed In 2000 would contInue In effect dunng the term of the 2003-2007 collectIve agreement. ThIS representatIOn IS Said to anse from the cOmbInatIOn of two factors (1) the pnor applIcatIOn of the June 3 2000 deadlIne to the correctIOn of errors, and (2) management's omISSIOn, dunng negotIatIOns for subsequent collectIve agreements, to say anythIng about abolIshIng that deadlIne I have already determIned the language of the current agreement permIts an erroneous semonty date to be corrected In the CIrcumstances at hand. The "whIchever IS greater" formulatIOn In artIcle 7 1(5) IndIcates errors could be corrected, despIte the earlIer agreement to the contrary HavIng agreed to the current wordIng of thIS artIcle, the umon cannot now claim to have been mIsled by management's sIlence at the bargaInIng table In short, the doctnne of estoppel does not allow the agreement reached In 2000 to trump the current collectIve agreement. The gnevance IS dIsmIssed. Dated at Toronto thIS 13th day of June 2005 ~~ /RIchard Brown Vice-Chair