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HomeMy WebLinkAbout1984-0621.Hallman.85-01-24IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (James H. Hallman) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: J. W. Samuels Vice Chairman S. D. Kaufman Member G. A. Peckham Member For the Grievor: E. J. Lennon Counsel Cavalluzzo, Hayes & Lennon For the Employer: M. Fleishman Counsel Crown Law 'Office Civil Ministry of the Attorney General Date of Hearing: December 6, 1984 . . DECISION 2. This case raises a neat point. The grievor joined the Public Service in 1972, and was a bargaining unit employee when he applied for the job of Patrol Operator B, Highway Equipment Operator 3. He was unsuccessful. He grieved, and the Employer replied that the grievor and the successful applicant were relatively equal in qualifications and ability, so the employee with the greater seniority was selected. But the successful applicant, Mr. D. McAsh, was not a member of the bargaining unit. He had joined the Public Service in 1961, but had been in management for the last 10 years. Article 4.3 of the collective agreement provides: In filling a vacancy, the Employer shall give primary con- sideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a~ consideration. This Board was asked by the parties.to determine a preliminary issue, before going on to consider the relative abilities of the two applicants - is the Employer entitled to consider Mr. McAsh's continuous service though he wasn't a member of the bargaining unit at the time of the job posting? Counsel for the Union urged us to adopt, the line of reasoning so elo- quently put by Arbitrator Laskin (as he then was) in Federal Wire & Cable Co. Ltd. (1960), 3 Steelworkers Arbitration Cases 276, and quoted in the recent Re Windsor Machine Co. Ltd. and United Steelworkers, Local 7816(1982), 4 L.A.C. (3d) 331, at page 334: I take as my starting point that seniority under a collective agreement has its meaning and application only under the terms and in the context of the agreement. Seniority, in other words, is a collective bargaining concept. There is no such thing as seniority in an enforceable sense under individual bargaining; and certainly not in a case where an employer has undisputed legal control over the arrangement and disposition of his working force, unless as a matter of grace. Seniority involves, in the first pjace, a service relationship among a group of employees - or at least more than one - and, as a matter of reciprocal rights inter se and as against the employer, its recognition and enforcement depend on common stipulations governing the group and the employer. This means collective bargaining; and it follows from this that the operation of seniority is, unless otherwise specifically provided, limited. to the group covered by the collective agreement. The same point is made by Mr. Shime in an unreported decision dated March 7, 1984, in a case involving The Participating Hospitals and the Ontario Nurses' Association: While we recognize the equities that have pushed arbitrators to extend seniority rights to non bargaining unit personnel, it is difficult to escape the logic expressed in the Federal Wire and Cable case that seniority is a bargaining unitept. Eetore collective bargaining employees do not have job security or seniority rights. Some employers may unilaterally grant priority to longer service employees, but these priorities are privileges and not rights in an era of pre collective bargaining. Once the right to collective bargaining is achieved, employees are entitled as of right, to the benefits of the collective agreement. These rights are achieved by bilateral negotiation and not unilaterally bestowed as a privilege. Employees entitled to collective bargaining through union repre- sentation pay dues to their union and are entitled to participate in union affairs including the setting of demands for negotiation purposes. Some of the rights and benefits achieved under col- lective bargaining came about as a result of strikes by employees. There is a price that is paid by bargaining unit employees for a collective agreement and it would require an overriding sense of altruism to pay the price that is required, in order to achieve benefits and rights for non bargaining unit personnel., It should require very specific language to find that bargaining unit employees negotiated rights for non bargaining unit personnel that gave them priority over members of the bargaining unit and it is difficult to imagine that priority rights would be granted to those who had not paid union dues, participated in the union pro- cesses and to those who had not been prepared to withdraw their services to achieve gains in a collective agreement. (at pages 5-6) In short, we should consider the second sentence in Article 4.3 to apply only to the employees covered by the collective agreement, and Mr. McAsh was excluded i. I. 4. from the bargaining unit at the time of the job posting. Under Article 1.1 of the collective agreement: In accordance with The Crown Employees Collective Bargaining 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 1 of Section 1 of The Crown Employees Collective Bargaining Act. And section.l(l)(f)(iii) of the Act excludesan employee in a~managerial capacity. The second sentence in Article 4.3 confers a right to the posted job on the bargaining unit employee with the longest continuous service, if qualifications and ability are relatively equal. The issue here is not whether non-bargaining unit experience counts towards the seniority of a bargaining unit employee (thi:s Board has already held that it does in Bickerstaff, 90/79 and 74/79, at pages lo-14), but whether or not a non-bargaining unit employee has a right to have his service considered at all under Article 4.3. And the answer to this latterquestion is "No". We agree. Counsel for the Employer argued that the second sentence of Article 4.3 permits the Employer to consider "continuousservice". This term is,defined in Article 25. Article 25.1 speaks of the commencement of "continuous service": An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) 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 public service, immediately prior to appointment to the Classified Service. 5. "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. Pursuant to this provision, Mr. McAsh's continuous service began in 1961. Then, Article 25.3 deals with the termination of "continuous service": Continuous service shall be deemed to have terminated if: (a) an employee resigns or retires; or (b) an employee is dismissed unless such dismissal is reversed through the grievance procedure; or (c) an employee is absent without leave in excess of ten (10) consecutive working days; or (d). an employee is released in accordance with Article 24 (Job Security) and remains released for more than two (2) years. Pursuant to this provision, Mri McAsh's "continuous service" had not terminated by the time of the job posting. Therefore, the Employer was entitled to consider Mr. McAsh's "continuous service" relative to the grievor's. And Mr. McAsh had longer "continuous service." In our view, the flaw in the Employer's argument is that Article 25.3 merely deems "continuous service" to have terminated in certain circumstances. It does not say to whom "continuous service" applies. Article 25.1 makes it clear that "continuous service" applies only to an "employee." Pursuant to Article 1.1, this must mean an "employee" under the collective agreement. Mr. McAsh was not an "employee" under the agreement. Hence, he had no "continuous service" for purposes of application of the rights and procedures under the collective agreement. ------I 6. In sum, Article 4.3 works as follows: firstly, the Employer is to look at all the applicants, whether bargaining unit employees or not, to see if one has better quali- fications and ability than all the others to perform the required duties. , secondly, if there is no such applicant, the Employer is to take the best group of applicants with relatively equal qualifications and ability, and from this group select the bargaining unit employee with the longest continuous service. If there is no bargaining unit employee in this group, then the Employer is not constrained under the collective agreement to consider the length of continuous service. This disposes of the issue raised before us. There remains the question of relative ability and qualifications of the grieror and Mr. McAsh. While in the Employer's reply to the grievance, it was said that the two had~relatively equal qualifications and ability, Counsel for the Employer indicated that he would argue now that Mr. McAsh had better qualifi- cations and ability than the grievor. We heard no argument on this point. Therefore, the Board will reconvene to hear evidence and argument on two matters: 1. Is it still open to the Employer to argue that Mr. McAsh has better qualifications and ability than the grievor, when it was conceded in the reply to the grievance that this was not so? 2. And, if the answer to question 1 is "YES", does Mr. McAsh have better qualifications and ability than the grievor? Finally, it is not necess~ary that the same panel hear these further matters. We did not hear any testimony of consider any, evidence or argument relating to these matters. Done at London, Ontario; this 24th day of January, 1985. S.D. Kaufmwember -/ G.A. Peckham, Member I I I ADDENDUM While I agree with the result in the Award of the Majority, I wish to add that my notes indicate that Counsel for the Employer stated that although the Grievor and the incumbent had relatively equal qualifications, he might argue, if the Board found for the Union on this preliminary issue, that qualifications and ability were not equal, and reserved the right to so allege. Hopefully both parties can solve this matter on the.basis of this decision, failing which a Board will likely have to first consider whether it is still open for the Employer to argue that the incumbent has better qualifications and ability than the Grievor, when it was conceded in the reply to the Grievance that this was not SO. Union Nominee