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Home My WebLink About1983-0721.Gouland.85-02-14IN THE MATTER-OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE Between: Before: For the Grievor: For the Employer: Hearin%: GRIEVANCE SETTLEMENT BOARD CUPE (Edgar Gouland) - and - The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) ,.~, :>. -.y R. L. Verity, Q.C. Vice Chairman H. Simon Member M. F. O'Toole .. Member T. Edwards Grievor Employer National Representative Canadian Union of Public Employees W. K. Osterberger Staff Relations Officer Staff Relations Section Ministry of Municipal A ffairs and Housing October 26, 1984 Thunder Bay, Ontario - ‘ - ; DECISION In a grievance dated November 7, 1983, Edgar Gouland alleges thathe was improperly denied seniority rights in his unsuccessful application for job posting 83/04 with the Thunder Bay District Housing Authority. By way of settlement, the Grievor requests appointment to the position in question and retroactive. compensation. Then successful applicant, Stephen Poshtar, was present throughout the hearing, presented evidence and was accorded the usual third party rights of participation. The facts are not in dispute. A vacancy occurred within the Thunder Bay District Housing Authority for then position of Full-Time Resident Building Custodian at a senior citizens building in Thunder Bay. On October 3, 1983, the Housing Authority ,. posted the position. The posting contained a general description of.the duties required o'f the Building Custodian and advised that the closing date for the competition would be October 12, 1983. Three applicants applied for the position and a short list was established containing the names of the Grievor and Mr. Poshtar. A selection committee composed of Glen Mills, Manager of the Thunder Bay Housing Authority, and Jack Caccamo, the .Authority's Maintenance Manager, .made the determination that Messrs. Gouland and Poshtar were relatively equal in terms of qualifications and ability, and therefore seniority would be the governing factor. -3- Mr. Gouland was employed by the Authority as a casual permanent employee with seniority dating back to March 21, 1978. Mr. Poshtar started work on a part-time basis on April 13, 1982 and became a full-time employee on Jun&:l, 1982. Both employees were building custodians at the time of the posting. The Housing Authority awarded the position to Mr. Poshtar and therefore the matter proceeded to arbitration. .._ The Grievor testified that he worked for the Authority at a senior citizens building in Geralton, Ontario. Prior to the application for the paste? position, the Grievor was a building custodian on a part-time basis and worked four hours per day, five days per week. Glen Mills testified that although the ~Grievor was guaranteed 20,hours per week, he was paid on an hourly basis for certain exterior landscaping duties including snow removal and lawn maintenance. Mr. Mills;gave evidence that the Grievor worked an average of 23 hours per week, and was employed in the Authority's largest building utilizing part-time personnel. The Housinp Authority Manager acknowledged that both Messrs. Gouland and Poshtar tiere "good employees". Mr . Mills testified that Mr. Poshtar was offered the position on the basis that he was the only employee with seniority as a full-time employee and the posting involved a full-time position. In a letter to Mr. Poshtar dated October 28, 1983, the position wa's offered to him with the starting date to await the outcome of a Grievance Settlement Board ruling on the competing seniority claims. -” -4 - Mr. Poshtar testified that it was his understanding that full-time employees had priority over part-time employees ..~ in any competition for a full-time position. The issue for determination is a matter of contractual interpretation, and in particular. an interpretation of Article 6.08. That Article reads: "6.08 Seniority as referred~to in this aqreerrent shall mean length of continuous service with the Rnployer and shall be the primary con- sideration in determining preference or priority for promotion, transfers, demotion, lay-off, permanent reduction of the work force, and recall. In considering candidates for promotion or transfer the Brployer may consider qualifi- cations and ability. Where the qualifications and ability of 'cm or more candidates are relatively equal, seniority shall he the determining factor." The thrust of the Union's argument was that Article 6.08 was clear in its terminology and accordingly past practice was not relevant. It was contended that the Collective Agreement did not limit seniority considerations to separate lists, but rather contemplated total seniority in the bargaining unit in the filling of a vacancy. Mr. Edwards alleged that to argue otherwise would inevitably give rise to absurdities and anomalies. The Employer contended that Article 6 provided for two separate and distinct lists of employees - namely full-time employees and casual permanent employees. It was alleged that priority should be given to senior employees in the same cake&y for the position in question--~ No concept is more firmly entrenched in the collective bargaining process than the concept of seniority. In a frequently quoted arbitral award - Tung-Sol of Canada Ltd. (1964) 15 L.A.C~. 161;His Honour.Judqe R. W. Reville stated at page 162: "Seniority is one of the most important and far-reaching benefits which the trade union novemant has been able to secure for its semhers by virtue of the collective bargaining procedure. An employee's seniority under the terms of a collective aqreemen t~gives rise to such irqzortant rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows therefore that an employee's seniority should only be affectedbyvery clear language in the collective agreement concerned andthatarbitrators shouldconstrue the collective agreement with the uimost strictness wherever it is contended that an empl9yee's.seniority has been forfeited, truncated or abridged under the relevant sections of the collective aqreemsnt." It is a well recognized arbitral principle that seniority under a Collective Aqreement derives its meaning only under the terms and within the context of that agreement. Accordingly, matters of interpretation begin with the wording of a particular Collective Agreement. In the instant matter, there are three types of employees referred to in the definition section set out in Article 1. -6- ':> (1) "ProbationaryEmployee" maan5 one who is, employed in the bargaining unit and has . . not acquired seniority. (Article 1.01 lb) 1 (2) "Fbll-time Bnployee" means one who is reqularlyaployeci for the nornalhoars per week as set out in Article 12. ($-tide 1.01(d)) (3) "Casual Permanent mloyee" mans an employee tie works less than a full-tirre employee on a regular continuing basis. A permanent employee i.s.defined in Article 1.01(c) as "an employee who has acquired. seniority". Article 2.0J.recognizes the Union as the sole and exclusive bargaining agent for all the employees. - "Seniority" is defined in Article 6.01 for full-time employees of a Housing Authority to include "his or her continuous and unbroken service with that authority".. Article 6.02 states that ,a full-time employee will acquire seniority upon completion of a 60 working day probationary period and that seniority would then revert back tq.the commencement of the probationary period. Article 6.04 states that a casual permanent employee must serve a. 6 month probationary period from the time he becomes eligible for inclusion in the bargaining unit, which by definition is after he commenced work "on a regular continuing basis". Clearly, the relevant Collective Agreement provides : for one bargaining unit which includes full-time employees, casual permanent employees and probationary employees in both categories. The Article then goes on to provide for separate seniority lists for full-time employees in Article 6.03 and casual permanent employees in Article 6.05.. These Articles read as follows: ~. "6.03 Each Housing Authority will maintain indivicloal seniority lists for all full-time employees within their jurisdiction." -. "6.05 Each Housing Authority will maintain individual seniority lists for all Casual Permanent ~&oyees within their jurisdiction. The seniority of a Casual Permanent mloyee will be calculated on the basis of 22 days of work egualling 0~ month of service and a day of work shall be counted as a day of Fx)rk regardless of the number of hours worked by the employee on th+ day." In Article 6 the reason for a separate seniority list for casual permanent employees is for the purpose of calculation of seniority for those part-time employees. Seniority calculation for casual permanent employees is on'the basis of days worked regardless of the number of hours worked in that day, and as is ,. indicated in Article 6.05, 22 days of work is the equivalent of one'month of service. Article 6.06 provides in January of each year there shall be up-dated seniority lists for both categories of employees. Article 6.07 provides for retention of seniority benefits and incorporation into the appropriate seniority list where any employee transfers his or her employment to a different Housing Authority. -. . The Board is of the opinion that the wording of Articles 6.08, which among other matters governs promotions, is clear and unambiguous in its wording. Accordingly, there is no reason to resort to past practice as an aid to interpre- station. The initial phrase of Article 6.08 bears repetition: "Seniority as referred to in this agreeman t shall nean length of continuous service with ~the E@loyer and shall he the primary consideration in determining preference or priority for promotion...." In our opinion, if differing standards were contemplated in seniority considerations in Article 6.08, the Article would specify that fact. The procedures for the filling~of vacancies as outlined in Article 8 of the Collective Agreement does not differentiate between full-time employees and casual permanent employees. If the parties had intended to apply different seniority standards in these two categories within the same bargaining unit, the Collective Agreement would have so provided, was is the case in some agreements. The Parties.do make such a differentiation regarding welfare entitlement outlined in Article 24. Article 24.07 states: .,. This Article will only~ apply to full-tine enpioyees." In summary, seniority as set forth in Article 6.08 means length of continuous service with the employerand includes all permanent employees whether, "ful 'F'e%anent~ employees". .l-time employees" or "casual In the instant matter, the Board finds that in the absence of evidence of 'a dispute regarding calculation of seniority of the Griever as a casual permanent employee, the Griever has in fact acquired greater seniority than Stephen Poshtar, the successful applicant in the competition. In the result, thizsgrievance must succeed and the Grievor shall be entitled to the position in question. In addition, he shall receive compensation for all lost wages and benefits retro- active to November 7, 1983. The Board shall remain seized in the event the parties are unable to agree upon the quantum of compensation. DATED at Brantford, Ontario, this 14th day of February, A.D., 1985. <~..A &,y ‘AZ Q.C. - Vice-Chairman , ,.. I H. Simon - Member M. F. O'Toole - Member