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HomeMy WebLinkAbout1986-0577.Youden.87-10-02;. j I, ,.., 1 . OMlRLo CRcwd ElpLmEEs GRIEVANCE g3E;bEMENT IN THE MATTER OF AN ARBITRATION .~ Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (M. Youden) and Grievor The Crown in Right of Ontario (Ministry of Government Services) Employer- P. Draper Vice-Chairman J. Anderson Member G. J. Milley Member For the.Employer: Hearing: July 15, 1987 A. McFarland, Counsel Gowling and Henderson Barristers and Solicitors E. Hipfner Staff Relations Officer Personnel Services Branch Ministry of Government Services DECISION The Grievor, Marilyn Youden, grieves that she was wrongfully denied leave without pay for the period August 25- 29, 1986, which she had requested under Article 29.1 of the collective agreement. Article 29.1 reads: Leave of absence without pay and without the accumulation of credits may be granted to an employee by his Deputy Minister. It is to be noted-that we are not concerned here with the exclusive managerial functions reserved to the Bmployer under Section 18 (1) of the Crown Employees Collective Bargaining Act. - At the material times the Grievor was employed as the records clerk, classified OAG2, of the Central Switchboard Unit, Information Services Branch., Ministry of Government Services. The,unit operates twenty-four hours per day, seven days per week, but the Grievor worked days only. She was-responsible fo,r keeping 'various records of the unit such as payroll and attendance, 'serving as a back-up to the switchboard operators, keeping current the reference material required by the operators and posting the up to date material at the twenty. switchboard work stations. She had no supervisory duties. In her absence, her work would-be done either by one of the three group leaders or one of the twenty-four operators in the unit. ." Her immediate superior was Judy Blundell, Unit,Supervisor and ,Chief Operator. Ms. Blundell reported to Sharon Gray, Manager, Inquiry Services, who! in turn, reported .to.David Ferguson, Directory; Inquiry Services. ~The Grievor was active in union affairs and at the material time was president of the local of which the .. employees of the unit were members and ~was a member of the unit's Employee Relations Committee CERC). On May 8, 1986, she made a written request to Ms. Blundell for leave without 3 pay to attend a union educational course to be conducted from August 25th to 2%th, asking for a reply "as soon as possible". MS.. Blundells' reply, given on the same day reads: _ '. L.W.O.P. is not granted as you have vacation credits to use for this period as I previously advdsed you on June :Q6, 1985. Vacation from Aug. 25-29, 1986 is approved. The Grievortestified that she rece~ived the reply "about fifteen minutes" after she had delivered her request to Ms. Blundell. When she questioned the denial of her reque~st, Ms. Blundell told her that it was unit policy not to grant leave without pay when vacation credits were available and for that reason she had the authority to deny the request herself. The reference to June 26, 1985, was to an occasion when the Grievor had been denied leave without pay because she had vacation credits available. At an ERC meeting in July, 1985, MS. Gray confirmed that that was unit policy. In November, 1985, when the Grievor had no vacation credits remaining, she was granted a three-day leave without pay. The grievor filed her grievance on May 27, 1986. The written reply at Stage One, dated June 2, 1986 ,and signed by Ms. Blundell Reads: This letter is written in response to your grievance dated May 27, 1986. It is the practice of the Central Switchboard to consider leave of absence without pay requests only after vacation credits are exhausted. A review of the circumstances of: your request does not suggest that it is unreasonable for you to utilise your vacation credits for thins absence. There has not been a vidlation of the.Collective Agreement and your grievance is therefore denied. . . Copies-were not sent to either Ms. Gray or Mr. Ferguson. The written reply at Stage Two, dated June 26, 1986, and ', signed by Mr. Ferguson as the Deputy Minister's designee, reads: On June 23, 1986, acting as the Deputy Minister's designee, I met,with you and your representative to discuss your 'grievance dated May 21, 1986. I havenow had the opportunity to give careful consideration to the points that were,raised by your representative. The tgranting of leaves-of- absence without pay is a matter which,is entirely within the ~discretion of,management. Generally all of the circumstances ought to be considered in determining whether a request for leave-of-absence will be granted to an employee. 5 I .have reviewed your request for leave-of-absence without pay for the period August 25-29, and it is my determination that management's decision was correct. If you wish to attend the educational ~-;.-~:. seminar at that time, you may utilise vacation credits to do so, subject to your requesting and being granted vacation for that period. There has been no violation of the Collective Agreement and your grievance is accordingly denied. A copy was sent to Ms. Blundell but not to Ms. Gray. Sharon Gray testified that Ms. Blundell telephoned her on May 8, 1986, to discuss the Grievor's request. They would have considered the unit's operational' requirements and the Grievors' attendance record, yacation entitlement, union activities and reason for the request. She did not tell Ms. Blundell what to write, was not told what she had written and did not see either her first reply of May 0th or her Stage One reply of-June 2nd "until recently". She did not refer to the sections of the Manual of Administration dealing with the Employer's policy regarding leaves of absence, .although she knows tha,t it is intended to achieve consistency and should be followed. She recalls that there was a discussion about leaves without pay at the July, 1985, ERC meeting and,that she stated'there that the practice of the unit "generally" was that such leave was not granted if vacation credits~were available. She does not recall speaking to Mr. Ferguson about the Grievor's request although she may have b~ecause she usually does in such cases. : . :. .,, 6 David Ferguson testified that he did not recall if the Grievor's request wasdiscussed with him, but thinks it would :: have been since it would be considered "controversial" because of the number of requests for leave made by the Grievor. In replying to the grievance at Stage Two he would have considered -, the unit's operational requirements, the reason for the ~.. request, the vacation credits available and the Grievor's absenteeism record. .He does not recall any mention of the J4anual of Administration at Stage Two. In his opinion the Grievor had the option of using her vacation credits and should have done so. He questions that management has to give all the reasons for the exercise of its discretion. Judy Blundell was not called'to testify. ~. In our view, this is a case in which the Employer's discretion was not exercised as contemplated by Article 29.1 because there was, in fact, no exercise of discretion atall. The article, on its face, bespeaks the exercise of discre- tionary authority. The automatic-imposition of a stated policy does not constitute an exercise of discretion. No considered choice is made between alternative courses of action, which is what discretion is"about. There is simply,, a programmed reaction to the issue raised. It istoo well settled to need lengthy elaboration here that while a policy may be laid down to guide the exercise of discretionary authority, the merits of each individu'al case must be considered by the decision-maker. See in this regard 7 Re: Meadow Park Nursing Home, 9L.A.C. (d) 137 (Swan, 1983). In Young,. 220/79~, a case brought under Article 29.1, the Board gave as its opinion that in leave of absence cases, boards of arbitration "Must decide whether~the employer . . . has turned itsmind to the merits of the particular request." In Brown and Beatty, Canadian.Labour Arbitration, Second Edition at p. 362, the statement is made with reference to leaves of absence that "At the.very least, the employer will be required to establish that in fact it did exercise its discretion by considering the individual-circumstances of the grievor's application." ~Unlike the situation in Lacourse, 1273/84, it is not argued here that Ms. Blundell's two replies to the Grievor's request were unauthorised. The.Grievor;s testimony that Ms. Blundell told her that she had the authority to make the decision stands unchallenged. The haste with which the first reply was given and the reference in it to the denial of a year earlier, as well as the opinion expressed in the reply at Stage One that it was not unreasonable that the Grievor should use her vacation credits, strongly support the inference that the existence of vacation credits was, indeed, the reason for the denial. ~.Nothing in the evidence of Ms. Gray and Mr. Ferguson alters the effect of Ms. Blundell's decision, much.less repudiates it. Their evidence reveals that their recollections :I , _.. ,-.- a of how the matter was handled are not entirely clear. Consequently;we are not persuaded that that evidence relates to the criteria that were actually considered in the Grievor's case rather-than to the criteria that should be considered in any leave of absence case. In particular, the message conveyed by Mr. Ferguson's Stage'Two reply is notably vague. In it he states that he gave Icareful consideration to the points that were raised by your representative". One would expect that he would have set out then criteria he had in mind " in denying the Grievor's request,;the more so if they I .+ represented .a departure from the basis on which Ms. Blundell had acted. The reply goes on to state that "Generally all of the circumstances ought to be considered in determining whether a request for leave-of-absence will be granted to an employee". That statement falls short of establishing. that those circumstances were, in fact, considered in the Grievors' case. The reply, as did that of Ms. Blundell, makes reference to the grievor's vacation credits. .We find, on the evidence, that Ms. Blundell made the decision to deny the Grievor's request based on the unit's policy not to grant leaves without pay when vacation credits are available, and without reference to the merits of the request. That decision was not effectively qualified or repudiated at a later~ stage of the grievance procedure and stands as the decision oft the Employer in the matter. We hereby declare that the Employer, in denying the Grievor's request of May 8, 1986, for leave without pay, failed to exercise its discretionary authority as required by Ariicle 29.1. Monetary compensations of $200.00 is requested on behalf of the Grievor, that being an estimate of the cost of an evening course, comparable-to the union course she had planned to attend, in which she enrolled at her own expense. Apart from the fact that the amount claimed.is not substantiated ~. in any way, we do not consider yat the Employer has any obligation to pay thezost pf a course which the Grievor took at her own choice and for her own purposes. . _ _., Dated at Toronto this 2nd day off October, 1987 "I dissent" (see attached) G. J. Milley, Member - 10 - Dissent of George J. Milley I have reviewed the evidence in the above matter together with the cases, to which the board was referred. I regret I am umable to agree with the decision of my colleagues. At the outset, the union counsel articulated Its position that it was seeking a management policy that any future request ,, for leavewould not be Influenced by the employeels vacation credits. Management, he said, had acted In an unfair and arbit- rary manner in denying~the grievor the leave requested. Article 29.1 does not, on its face, limit the discretion of Management in granting leave’ without pay. If the parties had wished to exclude considerat$on of accumulated vacation credits they could easily have done so in the same way as they did in Article’.54.2,’ Leave of Absence With Paz: “5b.2. The granti’ng of leave of ebsence.,,under thi's Article shall not be dependent upon or charged against accumulated credits.” j -, 11 - Notwl ths tand ing the language of Article 29.1, the Employer’s position was that it had examined the grievorls request for leave on its merits and that the decision to deny the request wasp not unreasonable in the circumstances. Turning to the majority award, with respect, I find it singularly unconvincing. Cn page 6, it begins: “In our view, this is a case in uhich the employer’s discretion was not exercised as contemplated by Article 29.1 because there was, in fact, no exercise of discret- ion at all. The article, on its face, bespeaks the exer- cise of discretionary authority. ~The automatic imposition 1 of a stated policy does not constitute an exercise of dis- cretion. No considered choice is made between alternative courses of action, which is whet discretion is all about. There is simply a programmed reaction to the issue raised.” Invariably, I get an uncomfortable feeling vhen e board purports ~’ to be privy to what uas contemplated during the negotiation of a collective agreement. Certainly, the board has the right to express an opinion on what the-parties might have contemplated, but, usually it is somewhat less than convincing. The statement that.management, in the instant case, exercised no discretion but simply applied a programmed response to the grievor’s request appears to be more than a trifle overstated. . Admittedly, Ms. BlondellIs initial brief reply said that leave is not granted “es ‘you have vacation credits to use fo?-this period”. However, her response dated Meg 27, 1966, et ‘the grievance stage indicates that the circumstances of the grlevorls~ ? ! - 12 - request were reviewed before it was suggested ‘it was not unreas- I onable (for her) to utilize the vacation credits. In this regard, the evidence of David Ferguson, Director of Inquiry Services, is in my view compelling and ought not to be ignored. It does no.t have the appearance of a programmed reaction., In’ his letter of June 26,1986. to the grievor, he states’ that all of the circumstances ought to be considered in determining whether .a request for leave of absence is gran,ted. He then continues: _~~~ “I have reviewed your requeist for leave of absence... and it is z determination that management’s decis- ion was correct.!’ (emphasis added) My colleagues describe the above reply as ‘“notably vague” because Mr. Ferguson did not set out the circumstances he had in mind in denying the grievor’s request. They are not persuaded,theg sag, “that the evidence relates to the~~criteria that were actually considered in the grievorls case rather than the criteria that should be considered in any leave of absence case’.’ With respect, -I do not view the reply as vague. While the letter does not list the points raised by the grievor’s representative, it does state that those points, uha tever they were, were given careful consid- eration. Surely, one’must conclude that the points raised by the representative were those he wanted to raise. As such, it would likely refer to more than the matter of vacation credits. Having already discussed the points with the representative, I do not find it unusual thst the Director did not list: them, ‘. ..; : . . seriatim, in his reply. In any .event, my colleagues' objections to the letter become non sequitur In the light of the Director's viva vote testimony. His evidence was that, at stage 2 of the grievance procedure, any additional aspects not looked at at stage 1 should be considered. The factors he considered, he said, in reviewing the grievor's request were as follow~s: 1. The Operational Requirements of the Unit 2. That her existing vacation credits could cover . . . 3. That while. the reason for the ccurse was of keen interest to her, it was not one for which leave of absence was normally granted ner being away additional time ' 2: Th e attendance record of the grievor;.her consid- erable absenteeism for some ~tlme All the circumstances, Mr. Ferguson said, were "fairly consid- ered". vacationcredits wera only one factor. ,. . The evidence of the grievor;s immediate supervisor, Miss Gray, was that if the grievor were off duty, the efficiency of the unit' would be affected because of a staff shortage..It takes, she said, tuo to three weeks. to train a replacement. Eecause of an unfortunate automobile accident the griever was sway from work~from 1981 to 1984 a total of 320 days due to illness. In 1985, she said, her.performance was unsatisfactory and she was away a further 16 days..This was note-due tc illness. Additlonally,.she took a significant amount of time off because of her work as a Union Steward. Because of all those factors, and.since the reason for leav~e was not considered a:compclling -<. - 14 - one, leave of absence was not granted. Nevertheless, despite the foregoing uncontradicted evidence of Mr. Ferguson and Ms. Gray, the maj:orlty award, on page 8, con- cludes: "We find, on the evidence, that Ms. 'Blundell made the decision to deny the grievorls request based onthe unit's policy not to grant leaves without pay when vacation credits are available, and uithout refer- ence to.the merits of the request. That decisio~n was not effectively qualified or repudiated at a.later stage of the grievance procedure and stands as the decision of the Employer in the matter." _I find this conclusion somewhat strange. As indicated by their testimony, both Ms. Gray and Mr. Ferguson effectively qualified Ms. Blundeil~s initial reason for~denying the request. The mat-. ~. . ter of vacation.credits‘given by her in her letter was not repudiated because it was one, but only one, of the reasons for the denial. Under cross examination, Mr. Ferguson freely admitted that in Ms. BlondellIs initial reply the emphasis on vacation credits was incorrect. But vacation credits, he said, was not the only consideration. On what logical basis, then, does the majority award so completely ignore the Employeris testimony in this regard? With respect, I do net agree that Ms. BlondellIs letter was the decision of the employer. The employerls decision is the reply at the final step-of the grievance procedure. Otherwise it would be pointless to have more than one step. The whole . - 15 - purpose of a step-by-step grievance procedure is to enable superiors to review and, if necessary,correct decisions of their subordinates. Finally, my views on the limitation and discretion which ought to be exercised by arbitration boards are, perhaps, best exp- ressed by the following arbitral pronouncement on page 12 of the Da Costa case (Samuels), G.S.B. 570/&: “In this and every like case uhere there is room for ~honest difference of opinion, if it appears - as here admitted to -be a fact - that the employer has acted honestly, we do not feel that a board of arbitration would be justified in interfering, by reversing the employer’s decision, for the reason that to do so would result In management by arbitrators rather than management by the employer. In this and every such like case where there is evidence on which a reasonable employer, acting reasonably, could have reached the decision such as is here challenged by the union, no board of arbitrators-.should interfere’: (excerpt from Re Canadian Industrie~s Ltd.. Nobel Works. and United Mine Workers, Local 13031 (i948), 1 L.A.C. 2% (Roach), Bt 237, and quoted in Re Photo Engravers and Electro- typers Ltd. and Toronto Printing Pressmen and Assist- ants’ Union, NC. at page 100) lo (19801, 25 L.A.C. (2d) 88 (Adams), In the present case the evidence is that the employer acted reasonably and responsibly in considering the grievor’s request and, in my opinion, his decisicn ought not to have been interfered ui th. Respectfully Submit