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HomeMy WebLinkAbout1990-0577.MacIsaac.91-02-27- :fik:iE EMPLOY& DE LA CO”RONNE DEL’ONTARIO COMMISSION DE am BOARD DES GRIEFS SETTLEMENT RkGLEMENT 0577/90 IN THN.NRTTER OF AN ARBITRATION Under TNE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacIsaac) BEFORE: FOR THE GRIEVOR - and - The Crown in Right of Ontario (The Niagara Parks Commission) w. LOW P. Klym F. Collict Vice-Chairperson Member Member D. -Eady Counsel Gowling, Strathy & Henderson Barristers h ,Solicitors Grievor Employer FOR THE EMPLOYER S.F. Gleave Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING: January 11, 1991 , I DECIBION Terry MacIsaac is an office clerk employed by The Niagara Parks Commission at the Table Rock Complex in Niagara Falls, Ontario. She has worked for the Commission since 1985. The Table Rock Complex is a tourist facility and as a result, Ms. MacIsaac and other employees of The Niagara Parks Commission work both shift work and outside the Monday to Friday period. At the Table Rock Complex, there are two permanent full- time staff members performing office clerk duties and three seasonal workers who also perform office clerk duties. This grievance arises out of a schedule devised by management and put in place for the summer season of 1990 (May through Thanksgiving) pursuant to which Ms. MacIsaac is required to work both days each weekend during the season. The grievance is that management has violated Article 5.02 of the Collective Agreement between The Niagara Parks Commission and The Ontario Public Service Employees Union which provides as follows: "5.02 The Commission recognises the desirability of scheduling time worked from Monday through Friday of each tieek and agrees to make every effort consistent with operating requirements to schedule hours of work during such days for as many employees as ' reasonably practical. It is'tnderstood the nature of the Commission% operations is such that many employees cannot be scheduled during such five days and different schedules may be arranged as operating conditions demand, but such schedules will be held to a minimum. However, in all cases, employees will be entitled to two (2) consecutive days off, and at least twelve (12) hours time off between shifts." The Collective Agreement provides at Article 1.03: "1.03 The term "employee" whenever used in this Agreement shall mean an employee coming within the Bargaining Unit as described heretofore excluding those persons referred to under Article 22 - Seasonal and Part-time Employees.11 The issue before this Board is whether or not the Commission has made. "every effort consistent with operating requirements" to schedule hours of work for the Grievor during Monday through Friday as is reasonably practical. The evidence was uncontradicted that prior to the summer season of 1990, Ms. MacIsaac and the one other full-time permanent office clerk, Eileen Pitts, each worked one day of the weekend, and this was the case throughout the year. The evidence before us was that the duties of Ms. MacIsaac and of Ms. Pitts, the other office clerk, are identical. These duties include: cash control, making up floats for retail cash registers, ordering change for the cash office, dealing with the Human Resources Department, keeping personnel records, signing people in, recording sick time, keeping files, recording vacations, keeping track of time taken for vacations, etc., accounting functions, including transfers of merchandise between different stores, doing the paperwork for transfers of 3 merchandise between the buildings, and doing the payroll for approximately 150 employees of the Commission. The evidence was that, while these are the duties of the two full-time permanent staff, the seasonal staff also perform these functions, although the seasonal staff may also be required from time to time to go onto the retail floor to provide relief. It was Ms. MacIsaac's evidence that she was trained to do her job including the preparation of the payroll by Melissa Roberto, one of the seasonal employees who has been employed by the Commission for about 10 years. The events which set the parties on the road to this grievance took place in November of 1989 when the new manager of the Table Rock Complex put forward a new work schedule for the summer season for 1990. The proposed summer schedule would require Ms. MacIsaac to work both days of the weekend for the entirety of the season and would also require Ms. Pitts, the other full-time permanent office clerk, to work both days of the weekend for the entirety of the season. Seasonal workers, in contrast, had some days off on the weekend according to the proposed schedule. Ms. MacIsaac asked that the days off be changed but Carol Brown,-the Manager, indicated that she would not change the days off and the rationale given for this position was that there had been problems with getting the payroll done in time and that the new schedule would be more fair since other employees at the Complex had to work weekends. The problems arising out of payroll were that when Eileen 4 Pitts was preparing the payroll, she had difficulty getting it done on time with the result that overtime was necessitated. There was no complaint about the ability of the Grievor to prepare the payroll in a timely fashion. The Grievor approached the manager, Carol Brown, with a proposal to change the work schedule ins order to provide both her and Ms. Pitts with days off on the weekend, except on those Sundays when the payroll had to be prepared, on which days both she and Ms. Pitts would work the Sunday. This proposa.1 was rejected by management. At least two approaches were made to management by Ms. MacIsaac, but without result, and Carol Brown indicated that she would not change the days off but would consider closing the office earlier. We heard evidence at length as to the payroll function of the Grievor. It is part of the Grievor's job description to prepare the payroll, which entails tallying up hours worked and entered on employee time cards and recording vacation and sick leave information in order to prepare the payroll which is every second week. The end of the pay period is the end of Saturday, and accordingly the work which must be done to get the payroll ready must be completed by the end of Sunday. The evidence was that the tallying of the time cards for the two week pay.period could be done to some extent during the two week period prior to the Sunday which closes the pay period. MS. MacIsaac's evidence was that it 5 would take her approximately 5 to 8 hours to do the payroll, and that it might take someone else of somewhat less experience about 8 hours to do the payroll. Carol Brown, the Manager, was asked during the course of her evidence how long it would take to do the payroll and her reply was "I feel it would take 24 hoursl@. Ms. Brown has no personal knowledge of how long it takes to do a payroll as she has not done one herself and it was acknowledged that, even assuming her estimate of 24 hours was correct, that 8 of the 24 hours required to do the payroll could be done during the week prior to the weekend closing the pay period. Therefore, it would take on Ms. Brown's thesis no more than 16 hours on the weekend closing the pay period (namely once every two weeks) to complete the payroll. No evidence was led as to why it was an operational requirement that Ms. MacIsaac work on those weekends which were not at the close of the pay period, or why it was necessary for her to work on the Saturday which was the close of the pay period. There is, however, some force to the suggestion that Ms. MacIsaac should work the Sunday after the pay period. As Ms. MacIsaac says in her own memo, Exhibit 8: "Since payroll is primarily my responsibility, I find it is important: (a) Permanent staff should work the Sunday after the pay period. reason: This past season, I have been signing out staff on the Saturday in order to finish up payroll. In other words the employees do not punch out on the last day of the pay period. In order to avoid this the payroll should be finished off on the following Sunday." MS. Brown suggested in her evidence that it was in her view desirable-that a member of the full-time permanent office clerk staff be on hand on the weekend, but there was no evidence that such desirability amounted to an operational requirement. To the contrary, the evidence was that the seasonal workers performed all pf the same functions that~the permanent office clerk staff perform, and in addition, perform certain oth~er functions on a relief basis. In any case, there was no evidence before us that there was any operational requirement that Ms. MacIsaac work both Saturday and Sunday all weekends of the summer season regardless of whether it was a pay weekend or not. Article 5.02 of the Collective Agreement requires the employer to make every effort consistent with operating requirements to schedule hours of work during the period Monday through Friday. In our view, this language is not equivalent to language permitting the employer to schedule employees for work on weekends if it deems such weekend scheduling desirable. To our minds, a distinction must be drawn between an operational requirement which suggests a necessity, as opposed to desirability. While it is important, by the Grievor's own admission contained in her memo to Ms. Brown, that permanent staff work on the payroll on the Sunday closing the pay period, there has been no evidence that there is any necessity or operational requirement that permanent 7 staff work any of the other weekend days in question. As to the question of whether or not the employer has "made every effort" to schedule Ms. MacIsaac for work Monday through Friday, this Board must find on the evidence that no effort was made so to do, but that instead, management set out a work schedule which de facto accomplishes exactly the opposite end to that set out in Article 5.02 of the Collective Agreement, without having explored or attempted means to avoid having to schedule weekend work to its employees as defined by the Collective Agreement. The case of Re Ontario Educational Communications Authoritv and National Assoc. of Broadcast Emolovees & Technicians, 11 L.A.C (zd), p. 30, a decision of Arbitrator Linden (as he then was), contains a consideration of the words "every effort", and I adopt that construction of the term which appears at p. 35 of the Report: "To me, 'every effort' means that the Company must really strain itself to avoid weekend work. They must exert themselves mightily to come to an agreement. Only as a last resort, should altered work schedules be imposed unilaterally. To comply with this provision, all of the possible alternatives must be considered and discussed fully with the employees....s On the evidence before this Board, it cannot be said that the employer strove mightily, or indeed at all, to avoid weekend work for Ms. MacIsaac, the employee. On the contrary, it appears that the work schedule requiring Ms. MacIsaac to work both days ‘) .* 8 every weekend during the summer season, was imposed unilaterally,' and that management was not ~prepared to consider or try alternatives thereto. Accordingly, we must find that the employer, The Niagara Parks Commission, is in violation of Article 5.02 of the Collective Agreement, and we so .declare. An order will therefore go that the Commission, in establishing its work schedules, comply with Article 5.02 of the Collective Agreement. DATED this 77th day of February, 1991. WAILAN LOW Vice-Chaiiperson F. COLLICT - Member