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Home My WebLink About1986-1529.Klonowski.88-12-17180 o”ND*s STREET WEST. TORONTO, mu*mo. M5G I.?8 S”lT.5 2100 TELEPHONEIT~&PHONE I&l, RUE D”ND/\S O”EST, TORONTO, ,ONTARlO, M5G 111) -BUREAU mm (41.5,598-W-98 71fPh 1579!86 ,p 1530186, 1531/X6 TN Tt!E MATTER OF AN ARBITRATION THE CROI.!N EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: HEARTNG: OPSEIJ (J. Klonowski) - and - The Crown in Right of Ontario ivinisrl-y of Correctional Services) I’. Kno,,f Vice-Chairperson I. Freedman Member G. Peckham Member I. .I. Roland COUllSt-I Gowling & Henderson Barristers & Solic,itors J. F. Benedict MallEiger Staff Relations and Compensation Finistry of Correctional Services January 12, 1988 i DECISION - At the commencement of the hearings, the Bdard consolidated the following files into one hearing at the request of the parties: 71/86, 1529,‘86, 1530/85 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 dealt with separately Sy the parties during the hearing. This award shall deal with them similarily. However, there is some evidence that is relevant and common t5 all the mattsfs. The grievor is a Correc:ional Officer who has Seen employed at the Maplehurst Correctional Institute since 1976. Maslehurst is divided into six units, five of which are residential and are thus located in the five living units of the ins ti tu tion. The sixth is called “General Duty” 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 institution. The grievor was notified that he was Seing reassigned to the general duty roster. The grievor feels that the general duty raster is looked down upon 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 grievor claims he vias never al’ii’n an;, reason for his transfer. Management witnesses have no apparent recall 0I the details of the matter. The grievor suggests that tIlPL-.z 1s an anti-union animus Sy management 3<cau5~7 the Cmjrirvor had 3f.z:~ elected Union Steward of his unit just prior to the transfer. The Employer denies this specifically. The Board issued an oral r~uling 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 duties within the same job or position. Therefore, no ;;iJlatisn of rirticle 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 i’s the intent of the parties that there shall be no s,olit 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 been assigned any work schedules wherein a daily Shift was divided by a period of time. But the grie%Jor’s complaint 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 s;hedJling am3unt2d to the im;Jositlon 0: soli t shifts. II other ,w:,r;!n, t h e 3 r ! .e i’ ‘, r _I 7 :> ‘9 13 t ! - 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 shift 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 intervai larger than that of the usual meal or rest period. The Boar? is prepared io accept that definitior, com?ie tely. All the ianguage of the coiiec tive 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 importantly, the coilec tive agreement promises 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 conceg t. Nothing suggests otherwise and nothing suggests that consistent shifts are required. While this may ba desirable from an employee’s perspective, the right to such a desire has not been won in collective bargaining. Thus, tnese .grievances are dismissed. - ., - tile 1529/96 - Allegation of Violation of Article 10.2 -- _-_-___--_---_---- This grievance allG?ges improper payment for shi’fts in Sep tember and Oc tober. However, in argument it was conceded that the October shift was properly paid and therefore the case 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? tembe r 6. tie was paid twelve hours f,or that overtime shift and wrorked intil 11:33 3.:x. 3erz;i~on he ;mmzZ ia teljJ c cm;ne n ,: 2.2 his regular shift and was ?aid eight hours for that. !ie ?olnts 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 Septamber 6 because he is entitled to both overtime say and payment under Article 10.2 for compensation for insufficient rest gar, between shifts. Q-cause the Union says these are different concepts they do not amount to pyramiding. Al terna tively , the Union argues that Article 10.2 entitles employees 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 Sentember 6 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 tiours. However, . the Union says in order to recognise the fact that there was no ga? and to avoid pyramidin.3, the grievor should also be oaid additional f.or half the time period of the additional shift equalling a total of 22 3ours payment. i ” 5, ’ - 5 - In response, the Employer oointe-1 out that the grievance was launched more than 20 days after the alleged breach of the collective agreement. Thus, we were urged to f in3 that the grievance was time-barred under the collective agreement. In the alternative, the Employer argued that the situation should be deemed to be governed by the Gram decision, --- Board File 1339/34 (Brent). In reoly to the timeliness argument, tne Union pointed out that the Employer had never raised the timeliness Issue at any s:age of the grievance procecjings. On the basi,s of t!?at, --he :‘:lion ha;i consciously 5scid:.j ~~0: :l call ““1 evidence of why the time limits had been oroken and conversations which would have ex>?ained the delay in filing. Thus, it was submitted that it was too late to raise a jurisdictional complaint at this stage in the proceedings. The Board agrees with the L’nion that where the Employer seeks to raise a timeliness argument, this must be done prior to the final argument at an arbitration. The Employer must be deemed to have waived any objection as to timeliness by its failure to raise the issue at an earlier ,date~.~ Therefore, we do not accept that as a defence to this grievance. Dealing now with the merits of the grievance, we conclude that the situation is governed by the decision between the parties involving the same grievor issued under Board File 565/86, Klonowski v. Minis= of Correctional Services -- --_ -~------------ (Springate), ‘lay 17, 1988. In addition, we adopt and accept the reasoning in Gram, xd, and Medland v. Ministry --- ---- ---- Correctional Services ------------I GSB File 1199/Y6 (Kirkwood). Those cases deal with similar and ~3entic;:l~ s~t~~dtion5 an.! warn against tne rules against pyramiding as si3t c)ut in Article 21.1 of tihe collr3ctivr3 agreement. - tj - Having -regard to the faregoing, we are satisfied that the grievor was paid properly for the time worked on SeptemSer 6 and 7 and any of the additional payments he is claiming would amount to pyramiding. aence, this grievance is also dismissed. DATED at Toronto this ~16th day of December , 1988. /q- ~.~./J,’ k&-af.P.C./L-&z-J ---A---___ ,,,,’ G. Peckham, Mem3er