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 Union - Local 1587

(O'Leary)

Union

• and -

The Crown in Right of Ontario

(Greater Toronto Transit Authority/GO Transit)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Gary Hopkinson

Green & Chercover

Barristers and Solicitors

FOR THE EMPLOYER

David Daniels

Miller Thomson LLP

Barristers and Solicitors

HEARING

May 25, 2005.

Decision

Terry O’Leary has grieved his placement on the seniority list. His complaint arises from the employer’s action in correcting an error made in determining the seniority date of another employee, Thanh Hillyard. The correction of this error gave Ms. Hillyard a seniority date earlier than Mr. O’Leary’s. Contending the error should not have been corrected, the union relies upon the language of the collective agreement and, in the alternative, the doctrine of estoppel.

I

Terry O’Leary and Thanh Hillyard both work as full-time customer attendants. The backdrop for this grievance about their relative seniority is described in the following agreed statement of facts:

1. On May 9, 2000, the parties reached an agreement to revise the system of seniority calculations for certain purposes as defined in an Agreement and a Letter of Intent of that date.

2. One half of the seniority calculations arising from these documents were performed by representatives of the union 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 seniority 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 of Ms. Hillyard’s seniority.

6. Neither party nor Ms. Hillyard challenged the incorrect calculation of her seniority prior to June 9, 2000. Ms. Hillyard was sent a notice with respect to her seniority calculation by the employer and the union with her seniority of October 2, 1993 attached. Ms. Hillyard did not approach the union or employer prior to June 9, 2000 to bring any problem with the calculation of seniority to their attention, nor did she request any correction or adjustment to same prior to June 9, 2000.

7. In 2004, the parties agreed to permit the application of classification seniority to the selection of shifts within the customer attendant classification.

8. On October 28, 2004, the employer informed employees of their ability to select shifts based on classification seniority in a memorandum of that date. The memorandum was accompanied by blank sign-up sheets and a seniority list. The seniority list showed Hillyard’s classification seniority as October 2, 1993.

9. A Bid Date for shift selection was established as November 16, 2004. Prior to this date, Ms. Hillyard raised a complaint that her classification seniority as shown on the posted seniority list was incorrect.

10. Following Ms. Hillyard’s complaint, the parties jointly investigated her claim. The employer concluded that her classification seniority should have been calculated as January 27, 1993.

11. The parties did not agree to revise Ms. Hillyard’s classification seniority. The union does not take issue that Ms. Hillyard’s classification seniority date should correctly be January 24, 1993.

12. The employer issued a direction to management to correct Ms. Hillyard's classification seniority. A copy of this direction was passed to Rose McKinnon, a shop steward of the union.

13. Following this direction, Rose McKinnon conducted the “sign up” process, approaching each affected customer attendant in order of seniority. Ms. McKinnon offered shift selection preference to Ms. Hillyard prior to Mr. T. O’Leary (the grievor). On the originally posted seniority list, Mr. O’Leary had been listed with greater seniority than Ms. Hillyard. Ms. McKinnon’s actions did not constitute approval or consent by the union to the employer’s readjustment of Ms. Hillyard’s seniority 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 grievance following confirmation of the shift assignments.

16. There were no discussions between the parties with respect to allowing any further adjustment to the classification seniority of employees made pursuant to the May 9, 2000 agreement during bargaining for either the 2000-03 or 2003-07 collective agreements.

II

I was referred to the following provisions in the current collective agreement running from May 24, 2003 to June 1, 2007:

7.1 (5) Classification Seniority 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:

1. For an employee with permanent full-time status, this date reflects continuous service in a bargaining unit 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. …

7.2(3) Classification seniority for the purposes of this agreement shall mean seniority 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 Seniority Date. …

As the 1996-1999 agreement pre-dated the system currently used to calculate classification seniority, 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 seniority for the purposes of this agreement shall mean, seniority held as of the effective date of this Agreement and thereafter the date of entry into the classification.

Based upon these provisions, the union contends Ms. Hillyard cannot challenge the seniority date mistakenly assigned to her in the spring of 2000. Counsel for the union submits article 7.2(3) of the current agreement. divides employees into two categories: (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 arises from the reference in article 7.2(3) to classification seniority meaning “seniority 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 parties on May 9, 2000, which stated “no adjustments” would be made to an employee’s classification seniority “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 seniority 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 seniority dates established under that agreement apply only to events occurring during its term and not to those happening 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 seniority 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 seniority date is as determined by the formula specified or as determined in the previous agreement, “whichever is greater.” Noting Ms. Hillyard’s seniority according to the formula is greater than that attributed 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 seniority date.

In my view, the words “seniority 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 meaning of article 7.1(5) is more straightforward. According to this provision, an employee’s seniority 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 seniority would prevail is to allow the correction of an employee’s seniority date previously set by mistake, at least where such a correction would benefit the individual in question. It is important to note that union 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 seniority 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 permit seniority 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, during 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 signing the agreement as presently worded.

III

Counsel for the union contends the employer is estopped from enforcing its interpretation of the collective agreement, because management represented to the union that the deadline established in 2000 would continue in effect during the term of the 2003-2007 collective agreement. This representation is said to arise from the combination of two factors: (1) the prior application of the June 3, 2000 deadline to the correction of errors; and (2) management’s omission, during 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 seniority 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 union cannot now claim to have been misled by management’s silence at the bargaining table. In short, the doctrine of estoppel does not allow the agreement reached in 2000 to trump the current collective agreement.

The grievance is dismissed.

Dated at Toronto this 13^th day of June 2005.