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Home My WebLink About1986-0071.Klonowski.88-12-16EMPLOYESDELA CO”RONNC CROWN EMPLOYEES I-~ DE L’ONTMKJ m GRIEVANCE CQMMISSION DE XMENT REGLEMENT DES GRIEFS Beiore: nor the Grievor: Under THE CROb!N EMPLOYEES COLLECTI\‘E BARGAINING ACT Before THE GR?EVANCE SETTLEMENT BCARD OPSEII (J. Klonowski) - and - For the Employer: HEARTNG: The Crown in Right of Ontario iv!.n;stl-y of Correctional Services) P. Knopf Vice-Chairperson I. Freedman wember G. Pwkham Member I. .I. Roland COUllSt-1 Gowling & Henderson Barristers & Solicitors J. F. Benedict Manager Staff Relations and Compensation Yinistry of Correctional Services January 12, 1988 DECISION - At the commencement of the hearings, the Bsard consolidated the following files into one hearing at the request of the parties: 71/86, 1529/86, 1530/86 and 1531/86. Tne grievances all dealt with the same basic concepts of scheduling and work assignments. The grievances divide themselves into three categories and were deai t with separately Sy the 2artie.s during the hearing. This award shall deal with them similarily. However, there is some evidence that is relevant and common t5 all the matters. The grievor is a Correctional Officer who has Seen employed at the Maplehurst Correctional Institute since 1976. Maglehurst is divided into six units, five oiY which are residential and are thus located in the five living units of the institution. The sixth is called “General Dutjr” and is the security and relief for the whole institution. It also deals with escorting inmates through the institution and relieving other Correctional Officers. (a) Reassignment Grievance - Board File 1531/86 - Grievance --- Dated November 18, 1986 In the early fall of 1986, the grievor was employed as a Correctional Officer II in Unit 2. Unit 2 deals with admissions into the i-nsti tution. The grievor was notified that he was being reassigned to the general duty roster. The grievor feels that the general duty raster is looked down u?on as he says “like a dumping ground” for employees who are considere:j as problem employees or who are not liked in their areas. The grlrvor claims he was ntz,vzr ai,ier, an:, reason for his transfer. Management wi tnesscs have no apparent recall of the details of the matter. The grievor suggests that tiler? 1s an anti-union animus Sy management ~?ca?ls,z the c~ri~evor had ne,z:i elected -Union Steward of his unit just prior to the transfer. The Employer denies this specifically. The Board issued an oral ruling at the hearing that this grievance should be dismissed. The grievance itself solely alleged a breach of Article 4. Article 4 contains the job posting provisions in the event of a vacancy. Nothing in the Union’s case established that any vacancy existed. There was no challenge to the Employer’s right to reassign staff within the same Classification. The facts establish that the grievor was simply reassigned to different duiies within the .same job or position. Therefor?, no ,.riolati3n of Article 4 has been established. If there had been any unjust discipline or unfair -- labour practices based on anti-union animus as the grievor suggests, such matters simply did not fall within the scope of the grievanCe as filed: Tnerefore, this complaint was dismissed. (5) Scheduling of Work - Board File 71/86 and 1530/86 --- These grievances allege that the Employer has violated Article 10.04 which provides: It is the intent of the parties that there shall be no split shifts provided. However, that in the circumstances where split shifts are currently in existence reasonable efforts~shall be made to eliminate the split shifts. ‘The evidence established that the grievor had not b?en assigned any work schedules wherein a daily Shift was divided by a period of time. But the ~ri~‘.:oi’s com??aint was that he was not scheduled so as to ensure five COnSecutiVe days’ work and that all the shifts were the same within each week. The grievor alleges that such scheduling amounted to the im?osi Lion 0: spli t shifts. 1 n 0 th c r ‘WC, !-;! :; , the gr!ciTr .:r~!l~3~? - 3 - that the collective agreement guaranteed him five consecutive days’ work per week and that he be assigned the same shift, i.e. the same afternoon or evening, each day of the week. The Employer argued that the split s!iift provisions in Article 10.4 should be given the ordinary and traditional meanings contained in Webster’s New World Dictionary Second Collegiate Edition which reads: A shift or work period divided into two parts that are separated by an interval larger than that of the usual meal or rest period. The Board is ?rep.are3 io accept that definition comoie taly . All the ianguage of tile coiiec cive agreement suggests that a “shift” is a daily, rather than a weekly concept. If the grievor were correct, a shift would be one week long and could never be “solit” by the interval of the 16 hours off an employee has every day between his eight-hour work periods. Further and more importan cly , the collec tive agreement ;rromises the grievor 43 hours of work per week and eight hours per day (Article 7.2). Management has a clear right to schedule and assign subject to the collective agreement. But the grievor can point to nothing in the collective agreement (other than Article 10.4) that guarantees consecutive days or consistent shift assignments. Clear language would be required to compel this. Indeed, it is clear from Article 10 as a whole that the term shift is simply a daily concept. Nothing suggests otherwise and nothing suggests that consistent shifts are required. While this may be desirable from an employee’s perspective, the right to such a desire has not been won in collective oargaining. Thus, these -grievances are dismissed. - ,, - tile 1529/36 - Allegation of Violation of Article 10.2 -- ~---_-_--~--~_----- This grievance alleges improper payment for shi.fts in Se? tember and October. However, In argument it was conceded that the October shift was ?rooerly paid and therefore the casa only concerned the work done in September. The evidence disclosed that the grievor was required to work a regular shift of eight hours on September 5. He then had eight hours off and was called in for an overtime shift on Se? tem3er 6. iie was paid twelve hours for that overtime shift an‘? work.4 !until 11:OO 3.x. -i-r., i,,~~,~~on he immeJiateiy zomm2n.ce:z his regular shift and was ?aid eight hours for that. !Ie no1nts out that he did not receive the twelve-hour gap required by Article 10.2 between shifts on September 5 and 6. The Union argues that he should be paid l-1/2 times the overtime rate for the morning shift of September 6 because he is entitled to both overtime ijay and payment under Article 10.2 for compensation for insufficient rest gao between shifts. Because the Union says these are different concepts they do not amount to pyramiding. Al terna tively , the Union argues that Article 10.2 entitles em?loyet?s to twelve ~hours off between shifts and that they should be paid l-1/2 times for the hours that fall within the twelve hours. Thus, in the case of the grievor, that would amount to the first four hours on September G which also happened to be an overtime shift. Therefore, the eight-hour overtime shift should be calculated at eight times l-1/2 hours of overtime 21~s four hours at l-1/2 times as per Article 10.2 totalling 18 hours. However, the Union says in order to recognise the fact that there was no gas and to avoid pyramiding, the grievor should also be said additional f.or half the time period of the additional shift equalling a total of 22 nou rs 2aymen c. - 5 - In respons2, the Employer point231 out that the grievance was launched more than 20 days after the alleged breach of the collective agreement. Thus, we were urged to find that the grievance was tim- a-barred under the collactive agr2emcnt. In the alternative, the Employer argued that the situation should be deemed to Se governed by the Gram decision, --- Board File 1339,134 (Brent). In regly to the timeliness argument, the Union pointed out that the Employer had never raised the timsliness ~ss~ue at any stage of th2 grievance proceedings. 3n thz basis OE that, 52 “nion had cons.~~cF~si; iC$:$e,$ 7.3: t;> call a>), evidence cf why the time limits had Seen nroken and conversations which would have explained the delay in filing. Thus, it was sunmitted that it was too late to raise a jurisdictional complaint at this stage in the proceedings. The Board agrees ,with the Cnion that vhere t!-i2 Employer seeks to raise a timeliness argument, this must Se done prior to the final argument at an arbitration. Tha Employer must Se deemed to have waived any objection as to timeliness Sy its failure to raise the issue at an earlier ~date~.. Therefore, we do not accept that as a defence to this griz,vance. Dealing now with the merits oE the grievance, we conclude that the situation is governed by the decision Srtween the parties involving the same grievor issued under Board File 565/86, Kloriowsk i v. Ministry of Correctional Services -- --- -~-------- (Springate), llay 17, 1988. In addition, we adopt and accept the r2asoning in @am, supra, and Medland v. Ministry ---- _--- Correctional Services, GSB File 1199/36 (Kirkwood). Those -____-------- cases deal with similar and iilentical. si:,Ja:ions and warn against tne rules against pyramidi.n:J as set tout in Article ?i.! of tlie coll2ctiv2 agrsemcnt. - ej - Having regard to the fJregoing, we are satisfied that the grievor was paid properly for the time worked on SaptemSer 6 and 7 and any of the additional payments he is claiming would amount to pyramiding. Hence, this grievance is also dismissed. DATED at Toronto this l6th day of December , 1988. _~_ ..__. --in--=- . rreedman, MetWar /” .' C. Peckham, MemDer