GSB# 0211/02
UNION# 02U010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
David Wright Counsel Ryder Wright Blair and Doyle
FOR THE EMPLOYER
Mary Gersht Counsel Management Board Secretariat
DECISION
The issue to be determined at this stage of these proceedings is whether the fifty-four days of the 2002 OPSEU strike count for the purpose of determining whether unclassified driver examiners are entitled to be converted to classified status. All submissions on this issue were made in writing and without a hearing.
This issue arises out of a union grievance filed against the backdrop of the impending privatization of driver examination services. On December 18, 2001, a Confidential Information Memorandum (CIM) was sent to qualified bidders. The CIM contained a timetable indicating the successful bidder would be announced in April of 2002 and would begin providing services by October of that year. Once the CIM had been released, the employer decided to stop converting unclassified employees, contending there was no “continuing need” for their services within the meaning of article 31.15 of the collective agreement. The grievance, dated January 25, 2002, challenged this decision. The timetable contained in the CIM proved to be unduly optimistic; at the time of the hearing on September 17, the employer expected the successful bidder to be chosen in December of 2002 and to begin providing services by March of 2003. In an award issued on October 24, 2002, I allowed the grievance, directed the employer to convert all unclassified driver examiners who, by September 17, 2002, had completed the period of service required to be eligible for conversion, and remained seized to address any disputes arising in the implementation of my award.
Some such disputes were resolved by the parties in minutes of settlement dated December 19, 2002. As of that date, the successful bidder had not yet been selected. Much of the settlement deals with details about converting unclassified employees to classified status.
Claiming the period of the strike counts for the purpose of conversion, the union cites article 31.15 of the collective agreement, the settlement and allegedly inconsistent treatment of employees seeking conversion. The employer rejects all of these arguments and also relies upon the protocol negotiated by the parties to govern the return to work from the strike.
I
The collective agreement addresses conversion in article 31.15. Article 31.15.1.1 governs the conversion of a position:
Where the same work has been performed by an employee in the Unclassified Service for a period of at least eighteen (18) consecutive months, except for situations where the unclassified employee is replacing a classified employee on leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work. (emphasis added)
The conversion of an employee is governed by article 31.15.1.2:
Where the ministry has determined that it will convert a position in accordance with 31.15.1.1, the status of the incumbent in the position will be converted from unclassified to classified, provided that the incumbent has been in the position in question for at least eighteen (18) months.
Both of these articles contain a timeline of eighteen months. The grievance was filed under the previous collective agreement which contained a time line of twenty-four months.
I begin with article 31.15.1.1. One criterion for the conversion of a position under this article is that “the same work has been performed” by an unclassified employee for the requisite time. The language of the article focuses upon the performance of work. As driver examinations ceased for the duration of the strike, a literal reading of article 31.15.1.1 would lead to the conclusion that time on strike should be disregarded when applying this article, because examinations were not “performed” during the work stoppage.
In contrast to article 31.15.1.1 respecting the conversion of a position, article 31.15.1.2 concerning the conversion of an employee makes no reference to the performance of work, as noted by union counsel. The criterion for conversion of an employee is that he or she “has been in the position” for the requisite time. Contending unclassified driver examiners continued to hold their positions throughout the work stoppage, counsel for the union submits the period of the strike must be counted when applying article 31.15.1.2. Counsel also argues this reading of article 31.15.1.2 should guide the interpretation of article 31.15.1.1, so that these two articles are construed in a “consistent” fashion.
There is considerable force to the argument that the period of the strike counts for the purpose of article 31.15.1.2. Assuming this argument to be correct, without deciding the matter, I find the resulting construction of article 35.15.1.2 to be of little assistance when interpreting article 31.15.1.1, for two reasons. The first is any inconsistency between articles 31.15.1.1 and 31.15.1.2 could be resolved either by reading the former to conform with the latter, as the union urges me to do, or by reading the latter to conform with the former, so that the performance of work would be a requirement under both articles. In other words, an argument based upon consistency is entirely indeterminate. Moreover, what the union describes as “consistent” interpretations of these two articles may not be required. When negotiating them, the parties may have intended the criteria for conversion of a position to differ from the criteria for conversion of an employee, in the sense that one was based upon the performance of work while the other was not. Counsel for the union offered no reason suggesting otherwise and none is self-evident to me.
Counsel for the union suggests the employer’s interpretation of article 31.15.1.1 would defeat the underlying purpose. As to the nature of that purpose, counsel relies upon OPSEU (Mistry) and Ontario Human Rights Commission, dated Feb. 10, 1998, GSB File No. 0569/96 (Verity):
To my mind, the purpose of article 31.15.1.1 was to state the “mischief” and the means to redress it. The “mischief” was the employer's indiscriminate use of unclassified employees to do continuing full-time work that should in equity and fairness be done by classified employees. The means to redress the "mischief' would be to give the unclassified employee, so circumstanced, the right to conversion to a classified employee … (page 7; emphasis added)
Article 31.15.1.1 does prevent the “indiscriminate use” of unclassified employees, but it also permits them to be used within clearly prescribed limits. According to this article, an unclassified position need not be converted until “work has been performed” by an unclassified employee for eighteen months. As driver examiners were off the job during the recent work stoppage, a literal reading of this article requires the period of the strike to be ignored when determining entitlement to conversion. This interpretation does not amount to permitting the employer to make indiscriminate use of unclassified employees.
In summary, a literal reading of article 31.15.1.1 excludes the period of the strike from the determination of when a position becomes eligible for conversion, and there is no compelling reason to adopt the contrary interpretation. The union’s position is not supported by the collective agreement.
II
The relevant portions of the settlement state:
WHEREAS the Union filed a grievance dated January 25, 2002; and
WHEREAS the Grievance Settlement Board ("GSB") issued a decision on the grievance on October 24, 2002; and
WHEREAS the parties wish to resolve any and all issues and matters related to the decision on a full and final basis;
THEREFORE the parties agree to full and final settlement of all outstanding matters regarding GSB#0211/01 without precedent and without prejudice on the following terms:
The Employer agrees to convert all the employees listed in Attachments “A” and “B” in accordance with Article 31.15 of the collective agreement, from the unclassified service to the classified service. The effective date of conversion shall be the same as the date this Settlement is executed by the parties. The parties agree that all employees listed in Attachments “A” and “B” shall have the option to elect to transfer to the new service provider.
(a) Subject to paragraphs 3 to 5 below, the parties agree that the employees listed in Attachments “C” and “D” at the time of the execution of this Settlement are not eligible for conversion. However in the event that any of these listed employees become eligible for conversion after September 17, 2002 up to and including the day before the successful proponent is announced these employees will be converted to classified status if they have completed 18 consecutive months of full-time service during this time period, and have satisfied the requirements of Article 31.15. The effective date of conversion shall be the date that they were eligible for conversion.
(b) The parties agree that any employee that has completed 18 consecutive months of full-time service as of the date of the signing of this Settlement and is eligible for conversion in accordance with Article 3 1.15 shall have an option to elect to transfer to the new service provider and that such employees shall have the same rights as those employees converted pursuant to paragraph 1 above.
(c) The parties agree that unclassified employees who become eligible for conversion pursuant to paragraph 2(a) above after the date of the signing of this Settlement but before the successful proponent is announced shall have no option to elect to transfer to the new service provider. The parties further agree that the rights of these unclassified employees shall be limited to those outlined in section 5.2 of Appendix 18.
The Union agrees to advise the Employer within 5 working days of the date of the signing of this Settlement as to any additional employees that it claims meets the minimum criteria for conversion of two consecutive years or 18 consecutive months of full-time service as of the date of the Settlement. …
In the event that the Employer agrees with any claims put forth by the Union pursuant to paragraph 3 above then the Employer agrees to add them to Attachments “A” or “B” and those employees will be treated in the same manner as employees under paragraph 1 and in accordance with paragraph 7.
In the event the Employer disagrees with any claims put forth by the Union pursuant to paragraph 3 above, the Employer shall treat these disputed employees in the same manner as employees under paragraph 1 above so long as Vice-Chair Brown later determines or the parties later agree that such employees meet the requirements for conversion under Article 31.15 of the collective agreement.
As noted above, the settlement is dated December 19, 2002.
Relying upon paragraph 2(a), counsel for the union contends unclassified employees are entitled to be converted “if they have completed 18 consecutive months of full-time service between September 17, 2002 and the date the successful proponent is named.” As noted by employer counsel, the union’s argument restates one criterion found in paragraph 2(a) but overlooks another. This paragraph states employees will be converted to classified status “if they have completed 18 consecutive months of full-time service during this time period [i.e. between September 17 and the naming of the successful proponent] and have satisfied the requirements of Article 31.15” (emphasis added.)
I have already decided the period of the strike does not count for the purpose of applying article 31.15.1.1. Accordingly, the fifty-four days of the work stoppage are not to be counted when determining whether employees “have satisfied the requirements of Article 31.15” within the meaning of paragraph 2(a) of the settlement.
III
Alleging arbitrary and discriminatory treatment, counsel for the union submits:
[T] he Employer has not consistently applied the practice of extending the conversion date by the length of the strike.
A number of employees were placed on Attachment B and converted by the Employer without regard to the length of the strike. …
It has long been accepted by this Board that the Employer cannot exercise its management rights in a discriminatory or arbitrary way.
If … it is determined that the Employer does have the right to extend the time for conversion by the length of the strike, it cannot exercise that right in an arbitrary or discriminatory way.
Yet, this has been the case. The 22 employees listed above have been converted without regard to the strike and without the length of the strike being held against them. There is no basis for treating the employees herein at issue any differently. To allow the Employer to pick and choose between employees in this regard would be to sanction an arbitrary and or discriminatory exercise of management rights and cannot be permitted.
The union’s brief names 21 employees listed on Attachment B. That attachment records the “start date” for an employee as well the date when he or she “became eligible for conversion”. For the employees named in the brief, the date shown for eligibility for conversion is eighteen months after the start date, even though the strike occurred in the interim.
The essence of the allegation of arbitrary and discriminatory treatment, as initially presented by the union, is the 21 named employees were treated more favourably than were others for whom the employer insisted on discounting the period of the strike. Two such employees are cited by way of example. The first is Cindy Lauper who started on August 13, 2001 and whom the employer contends did reach the eighteen-month mark until April 7, 2003. As the successful proponent was announced before this date, the employer declined to convert Ms. Lauper to classified status. She would have been entitled to conversion if time on strike had been counted her in favour. The second employee cited by the union is Christine Currie who started work on June 18, 2001 and whom the employer contends was not eligible for conversion until February 8, 2003. As the successful proponent had not been announced by February 8, Ms. Currie was converted to classified status. However, she was not permitted to elect whether to transfer to the new service provider, because the employer treated her as not being eligible for conversion on December 19, 2002, the date of the settlement. She would have reached the eighteen-month mark by that date if time on strike had been counted her in favour.
The most pertinent part of the employer’s response to the allegation of arbitrary treatment is as follows:
The Union argues that the Employer has not consistently applied its position to the affected employees in that there are employees on Attachment B to the Settlement who, it suggests, were converted without regard to the period of the strike.
With respect, that is a complete misrepresentation of the facts giving rise to the Settlement. Rather, the Employer has acted consistently at all times with respect to the conversion of employees and specifically with respect to the eligibility for conversion of the named employees in the Union's submissions.
In reaching the Memorandum of Settlement, the parties agreed that all of the employees listed on Attachment B to the Settlement had become eligible for conversion on the date of the Settlement, December 19, 2002 and it was agreed that those employees would be converted effective December 19, 2002 (as found at paragraph 1 of the settlement). At the time of the Settlement, all of the employees on Attachment B had reached their eligibility for conversion without counting the period of the strike as each had worked 54 days past the original date on which they would have been eligible but for the strike. (emphasis added)
In reply argument, counsel for the union submits Attachment “B” was intended to list employees eligible for conversion as of September 17, 2002, not those eligible as of December 19:
[A]s can be seen from paragraphs 1 and 2 of the Settlement and from Attachments A and B to it, the important date is September 17, 2002. The Attachments are expressly stated to be listings of employees who had reached the point of eligibility for conversion as of that date.
Counsel for the union went on to name ten employees shown on Attachment “B” as being eligible for conversion on September 17. None of them would have reached the eighteen-month mark by that date if their service during the strike had been ignored. The essence of the union’s revised argument is that time on strike counted to the benefit of these ten employees but not to the benefit of employees in circumstances analogous to those of Ms. Lauper and Ms. Currie.
The determination of whether employees have been treated in an arbitrary or discriminatory fashion should be based upon what the employer did when converting them, not what was said in Attachment “B” about their eligibility for conversion. The only differences among employees in their actual treatment are in accordance with the substantive terms of the settlement itself. Based upon when unclassified employees reached the eighteen-month mark, the settlement divides them into three categories with different rights: (1) those reaching this mark by December 19, 2002 are entitled to be converted, effective that date, and they are granted an election whether to transfer to the new service provider; (2) those reaching the eighteen-month mark between December 19 and the announcement of the successful proponent are entitled to be converted upon reaching the mark, but they are not granted an election; and (3) those reaching the mark after the announcement are entitled to neither conversion nor election. With credit for time on strike denied to all, the twenty-one employees named in the union’s brief fall in the first category, Ms. Currie in the second and Ms. Lauper in the third. In short, the differences in the entitlements afforded to them are determined by the terms of the settlement, not by crediting some with time on strike while denying like credit to others.
IV
The employer’s approach to determining when employees became eligible for conversion does not contravene article 31.15 of the collective agreement, the settlement or the implied contractual prohibition against arbitrary and discriminatory treatment. Having come to this conclusion, I need not consider the employer’s alternative argument based upon the return to work protocol.
Dated at Toronto this 9th day of April 2003.