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HomeMy WebLinkAbout1986-1595.McCullough.88-06-17EA4PLOYES DELA COURONNE DE “ONTARIO CQMMISSION DE SE-KLEMENT REGLEMENT DES GRIEFS Between: Before: 1595186, 1601/86 IN THE NATTBB OF AN ARBITRATION Under THE ~EO~N BwI+Oti~s COLLECTIVE BARGAINING ACT Before THE GBIBVANCE SETTLBMENT BOABD OPSEU (W. McCullough) and The Crown in Right of Ontario (Ministry of Correctional Services) B. Kirkwood Vice-Chairman G.A. Nabi Member D.C. Montrose Member For the Grievor: A. Ryder COUllSel Gowling and Henderson Barristers and Solicitors For the Employer: J.F. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services January 13, 1988 ___,. ,. ‘,,..‘.1 Grievor Employer Page 2 DECISION The-union brought two grievances before the Board both relating to the issue of overtime. In first grievance number 1595, the grievor claimed that the employer violated Article 9 of the Collective Agreement in applying a refusal to work‘overdme. The union was asking the Board, for a declatadon that the. employer clarify in writing that a refusal to work an overtime shift on one calendar day is not to be recorded as a refusal to work overtime on the next calendar day; and secondly that the grievor be paid for the overtime shift on December 6, 1986. which he had indicated that he was available for and did not receive. In grievance number 1601, the grievor claimed that he had been di scriminated against, by not being given an equal opportunity to do overtime and he was asking for compensation for five overtime shifts which he would otherwise have worked in the month of November 1986. The employer ins$tned a system of a shift schedule roster which was subject to certain limitations in scheduling the overtime as a result of the &xB (G.S.B. #1339/84) decision. The correctional officers were. asked to telephone Mr. Dvorak to provide him with their telephone numbers and the days which they would be able to work.. On November 21,1986, A.C. Dvorak distributed a memorandum to all correctional officers which stated as follows: I “Many officers have not taken advantage of the overtime Availability Board in the Corpmah Office. It is important to do two things if you are interested in obtaining overtime shifts. These two things am: 1. ~Underline each date which you are available to work an overtime shift. 2. Place your telephone number at the right hand side of the appropriate page. Ezev;&y items are very important if you are interested in obtaining any Management is very concerned about distributing the available overtime fairly, however, if you don’t list yourself as being available you may be missmg the opportunity of being hired-. The grievor who was a correctional officer at the Metropolitan Toronto East Detention Centre followed the procedure set out in numbers 1 and 2 to make himself available for overtime on November 29,1986 and November 30.1986. On November 29.1986 and 30, 1986, twenty officers made themselves available, of which two offtcers worked full shifts on November 28, 1986 and three officers worked full shifts on November 30; 1986. Although the grievor made himself available on those days, he was not called even though he had not done any overtime Page 3 during the month of November and the employees called had aheady done overtime that month. The grievor was asked to work overtime on the shift commencing Friday, December 5, 1986 at 11:UO p.m., but he was not available. When he reviewed the employer’s records, he noticed that the employer had marked that he had refused overtime for Saturday, December 6, 1986, and that the employer had given overtime to another employee. Therefore, he was also claiming payment for the overtime shift which he was not given on Saturday, December 6.1986 on the basis that the employer had incorrectly marked that he had refused overtime on the Saturday instead of on Friday and had denied him the opportunity of receiving overtime. The employer made a prehminary objection that the Board did not have any jurisdiction to deal with these grievances as there is nothing in the collective agreement which deals with the distribution of overtime and scheduling of overtime which is the issue before the Board. The employer’s counsel submitted that under section 18(l) of the Crown Emplovees Collective B . . R.S.O. 1980 as amended, that the management had the statutory right to assign its employees to do the work in question, and that tight is not limited by the parties in the collective agreement. The Board is limited to interpretlng article 9 of the collective agreement. In support of the employers position, the employer referred the Board to the Grievance Settlement Board decisions of &l&t& (G.S.B.#94/18) (K.P.Swan) and $&&~xg (G.S.B. #526/82) (R. L.Verity). the Divisional Court’s decision in & Munic&&tv of Metrooolitan Toronto an8 . . m Chvlc Emulovees’ Union. Local 43 et al, (1975) 10 OR. (2d) 36 and Re Metronolitan Toronto BQELlS of Commir&&ers of Police v. &&%ronolitan Toro . . nto Police Assmatton et aL (198 1) 33 O.R. (2d) 476. The union’s counsel argued that the Board had jurisdiction as the grievances before the Board involved the interpmtation of the collective agreement However, the union’s counsel also submitted that the Board must use the concept of the theory of estoppel as a sword to find that the employer is estopped from relying on the collective agreement as the employer had issued a memorandum delineating the prccedum to be used to apply for overtime and they must apply the system proposed. In support of his position he relied upon the case of the Divisional Court decision of mlwav Co et al v. Ba 34 O.R. (2d) 385. He argued further that the Crown Emolovees Collective Bareainw does not oust the application of estoppel. ( i The Boards jurisdiction is limited to dealing with matters provided in the statute or defined by the parties in the collective agreement. Professor Swan clearly analyzes the Boards jurisdiction in the &J&y. case (supra) in which he stated at page 2 of the award “We should note that our jurisdiction is StaNtOry only, and has two main branches. Piit, we are vested with the jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective agreement; this jurisdiction arises under s.18 of the Crown v . . w Second, beyond that jurisdiction and independent of it, we have the juriskion set out in s.17(2). quoted above. We have no other authority to intercede between the parties; we do not have any inherent jurisdiction to do justice - or what we may conceive to be justice - or to provide remedies, no matter how desperately a particular case may cry out for relief. The Board is a creature of the sta~te. and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreement, and our jurisdiction is thus broadened to the extent that they have done so. Beyond this circumscribed jurisdiction, the Boards legal authority is non-existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a court” In both the Divisional Court in Be Torontp v. a . . VIC Er~&vecs t . -al 43 et aL and the Court of Appeal in uowliti\n . . Toronto . 1 V. Wmnolitan T~~pntp Police Amctahon et & (supra) Clearly lir&ed each board’s jurisdiction to deal only with matters defined in the collective agreement where there is an issue on a substantive matter. Unless there is a specific clauses to refer to, the Board does not have the jurisdiction to consider how management exercises its rights. In the situation before this Board, section 19( 1) of the &own E . . ective w (supra) specifically directs the Board to consider the collective agreement and section 18 of the m . . w (supra) confers the exclusive function on the employer to assign its employees to work and thereby schedule and distribute overtime. There is no article in this collective agreement which determines how the distribution is to be made nor limits the employer’s ability to manage the overtime. Therefore we have no jurisdiction to monitor the employer’s system of distributing overtime. The Board is limited to interpreting and applying the collective agreement The application of estoppel by conduct was considered and applied in Canadian v. w (supra) where the court found that there had been a longstanding practice upon which both parties relied until the employer unilaterally applied the wording of the collective agreement, which was contrary to the established practice. In so doing, the union w.as effected detrimentally by not then having the ability to negotiate a different term for collective agreement. The court found that the doctrine applied as the Board was applying the collective agreement. The Board does not find that this case,is applicable to the case before the Board. Unlike the wan National Railway (supra) case in which the collective agreement speciticaIly provided that there were to be no sick benefits paid for the fast three years of hospitalization, the Board was considering the practice in applying this article of the collective agreement. In the case. before the Board there is no article which directs the mechanics, distribution and entitlement to overtime. Therefore, the Board is limited to interpreting and applying the management rights clause as found in s. 18(l) of the mtive B O- . . (supra). The management rights clause is my broad and there is nothing in the collective agreement to limit the employer’s ability to direct how the overtime. is to be. distributed. The memomndum is nothing more than a direction for the employees to follow to enable them to be considered for the overtime, but does not require the employer to choose those persons on the list, or to follow any specific system in determining who the employees should be to do the overtime. In grievance number 1595, the union’s counsel relied on article 9.1 of the collective agreement, which states: “A shift which does not commence and end on the same calendar shall be considered as falling wholly within the calendar day in which the shift commences”. to argue that the employer marked the employee’s refusal to do the overtime improperly by marking the refusal as of Saturday and not as of Friday. The union submitted that this article in the collective agreement was included in order that the par& could identify which shift was being worked upon, and to prevent holiday pay being paid just because a shift commenced at 11:OO pm. on a non-holiday and ended on a holiday. Roards have on several occasions considered how overtime is to be treated when the overtime is attached to a shift. In R . e and Silverwood Dairies LJ& (1%9) 20 L.A.C. 406 (Weatherill) the shift to which overtime followed and the overtime were considered to be psrt of the same shift. This treatment of the overtime hours has been applied by Boards in defining what is meant by a shift. In the &I-Q& (GSB. #74/77), &&&y (GSB. #593/83) and &d&~ld (GSB. # 31199/86) decisions, the Boards considered the overtime and the regular shifts as part of the same shift. Therefore “shift” in article 9.1 of the collective agreement includes the overtime which the grievor was asked to do on the Friday, although the hours of the overtime would have fallen on the following day. Therefore, the overtime is to be considered part of the shift which commences on the Friday and the employer incorrectly markai the refusal to do the overtime on Saturday and the grievor was denied the opportunity to do overtime on Page 6 Saturday. Although the grievor said at the hearing that he was available to do the Saturday evening overtime shift, the employer could not have known that he was available as the grievor had not followed the procedure which the employer had asked the employees to follow to make it known when the employee was available for overtime. Therefore as it was not shown that the grievor would have or even could have received the overtime shift on Saturday, the grievor cannot be compensated for that shift Dated at Toronto, this 17th day of June ,1988. ,/-4- BXrkwood, Vice-chairperson ,,/l.jq&! G.A. Nabi, - Lleraber tc&&+.- D.C. Momrose,. - Member