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HomeMy WebLinkAboutMcPeak 90-01-02. IN THE MATTER OF AN ARBITRATION BETWEEN ~ LOYALIST COLLEGE (the College) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) GRIEVANCE OF JOHN McPEAK (the Grievor) BOARD OF ARBITRATION:(the Board) A. M. KRUGER - Chairman R. J. GALLIVAN - College Nominee E. SEYMOUR - Union Nominee APPEARANCES: For the College - C. C. White, Counsel - D. Butler For the Union - R. E. Stoykewych, Counsel - J. McPeak - J. O'Neil HEARING AT BELLEVILLE, ONTARIO - NOVEMBER 13, 1989 Page 2 The parties agreed at the outset that this Board of Arbitration was properly constituted and had jurisdiction to hear and decide this matter. Fortunately there is no dispute about the relevant facts. The grievor, Mr. John McPeak, has worked at the College as a caretaker since 1986. At the time of the events leading up to his grievance he was employed as a cleaner in the Computer Centre working the night shift. That shift is scheduled Monday through Thursday from 10:30 P.M. to 7:00 A.M. and on Fridays from 5:00 P.M. to 1:30 A.M. The College schedules vacations for cleaning staff between May and mid-August when fewer students are around. Within that period, worker choices are accommodated by seniority. The grievor had the least seniority of all the cleaners and accordingly had to take his vacations from the options remaining after the more senior employees had indicated their preferences. In 1988, the grievor's wife was pregnant with their first child. Her expected due date was August 11, 1988. He took his vacation that year during the last week in June and the first two weeks in July. While they were on vacation, Mrs. McPeak, became ill and was hospitalized in Belleville for a week. On his return from vacation, the grievor informed his immediate supervisor, Mr. Wildash that his wife was expecting a baby in August and that he likely would be off work at the time of her delivery. Page 3 on Wednesday, August 10, Mrs. McPeak experienced labour pains and the grievor took her to the hospital. She was admitted about 1:00 P.M. that day. The labour was prolonged and when the grievor saw that he would not be able both to attend the birth and be at work, he called the College office to report that he would be away from work because his wife was about to give birth. He was not specific about whether his absence would be only for the next scheduled shift (Wednesday 10:30 P.M. to Thursday 7:00 A.M.) or would be longer than that. Efforts to induce labour that evening failed. The grievor and his mother-in-law remained at the hospital all night and he went back and forth between the area where his wife was and the waiting room where his mother-in-law waited. At about 11:00 A.M. · on Thursday, a caesarean section was performed and a healthy baby emerged. It was some time before Mr. McPeak was informed of this and he did not see his wife until sometime between 2 and 3 P.M. that day. He spent about an hour with her and then drove his mother-in-law home. He spent about an hour at his in-laws's home talking to his father-in-law before he drove home and went to sleep exhausted from these events. He did not phone in again and missed his Thursday night shift. He next reported for work on Friday of that week as scheduled. When he received his pay for the period in question, he realized that he had been paid for only one of the two nights he was absent attending to his wife while she was giving birth. He asked why and was told that while he had been granted a paid Page 4 leave for the shift that began Wednesday, August 10, his absence on the second day was considered to be an unpaid leave. On August 26, Mr. McPeak wrote his supervisor Mr. Wildash to request a reconsideration of this decision. He explained that the complications his wife had experienced during her pregnancy had scared them and that he felt obliged to be with her during the birth. He went on to explain that the labour was prolonged and that he did not get home from the hospital until after supper on Thursday. He concluded by saying: "It was a long couple of days. After working Tuesday night, spending Wednesday and a good part of Thursday at the hospital, I was in no shape for my shift Thursday night. Sorry." This was followed by a formal grievance dated August 29 requesting an additional day's pay citing Article 12.2 of the Collective Agreement. In denying his grievance, Mr. Barry Deans, Director of Plant at the College wrote the following letter entered as Exhibit lC in these proceedings: Page 5 CONFIDENTIAL September 02, 1988 Mr. John McPeak 45 Benjamin Street Apt. 10 Belleville, Ontario KRP 1P6 Dear Mr. McPeak: RE: YOUR GRIEVANCE FORMS DATED AUGUST 29, 1988 The College granted one day's leave with pay (Article 12.2 Personal Leave With Pay), and one day leave without pay (Article 12.1 Personal Leave Without Pay.). You were aware that your child would be born some time during August or September, yet you did not request that any annual leave be retained for this event. Furthermore, you did not advise your supervisor or the Maintenance Office that your wife was having difficulties and that you were unable to attend your shift for the second day. The Articles 12.1 and 12.2 provide for time off work but also require that reasonable notice be given - this was not the case. Leave with pay for personal reasons has been granted to you in the past, which confirms that the College is flexible when extenuating circumstances exist. I believe that the College was fair in this situation and was in accord with leave granted for similar circumstances by the Maintenance and other College Department. I regret that your request for a day's pay must be denied. Yours truly, Signed Barry Deans BD:sy Director of Plant C.C.D. Butler Page 6 At the third step of the grievance, Mr. McPeak received the following letter from Mr. G. J. Palmer, Director of Finance and Administration: EXHIBIT ld September 30, 1988 Mr. John McPeak 45 Benjamin Street Apt. 10 BELLEVILLE, Ontario KSP 1P6 Dear Mr. McPeak: The facts of this case are as follows: 1. There is no clause in the Collective Agreement requiring the College to pay for any time off for paternity leave. 2. The two articles of the Collective Agreement 12.1 and 12.2 state that leaves "MAY" be granted by the College both with and without pay "at the discretion of the College". 3. The College Policy PER 202 states: "If, for any reason, you are unable to report for work on a regularly scheduled work day, your immediate supervisor must be notified as soon as possible and prior to your absence.", and "The Union contracts and Administrative Terms and Conditions describe which absences will be without pay or, at the discretion of the College, handled in some other way." 4. Past practice at Loyalist College indicates that no employee has received more than one day with pay at the birth of a child. In some cases, due to a birth on a weekend, some employees neither asked for nor received any paid time off. 5. You called the College on August 10th, 1988 to inform your supervisor of the pending birth and to request that night off with pay. 6. The College agreed with what you asked and you were paid for that absence. Page 7 7. You took it upon yourself to take the next shift off and neglected to inform the College or to seek permission. 8. You are grieving to be paid for an absence without permission. Upon researching the files there have been two other cases where you have missed work and either have not called in or not returned on the appointed day. In each case the absences were with no pay. Under the circumstances described above, it is my opinion that the College's action of paying you for one day, the 10th and retroactively agreeing to a leave without pay on the llth is generous and I therefore must deny your grievance. Yours truly, Signed: G. J. Palmer Director of Finance and Administration President's Designee c.c. J. Boor G. Morgan The matter then proceeded to arbitration. There are other facts that emerged from the testimony of witnesses before the Board that should be mentioned. Mr. McPeak told the Board that when he was absent because of illness he would only call in once on the first day of absence even if the illness kept him away from work more than one day. He was never reprimanded for this. Mr. Deans, who testified on behalf of the College, told the Board that he made the initial decision not to pay Mr. McPeak for the second day of his absence under Article 12.2 of the collective agreement. This decision was based on several factors. First, the College had a practice of paying new fathers only for Page 8 one day of absence in connection with the birth of a child. There had been no exception to this policy. He was unaware of any special circumstances, such as the need to travel a long distance to get to work, that might justify an exception in this case. He also gave some weight to the grievor's failure to call in on Thursday to explain his absence that night. After the grievor wrote the College on August 26 requesting reconsideration of the matter, Mr. Deans reviewed his decision. In addition to the factors mentioned above, he also looked at the grievor's record of time off work and his work performance. He also inquired about any vacation time used by Mr. McPeak around the time of the birth. He decided to stick to his original decision. After the grievance was filed, Mr. Deans again reviewed the matter and met Mr. McPeak to learn more about the circumstances of his absence. It was Mr. Deans who made the final decision and provided the material for the letter signed by Mr. Palmer rejecting the grievance at step three. In response to a question put to him by counsel for the College, Mr. Deans said that if the grievor had wanted to, he could have set aside a day or two of his vacation with a request that he use it at the time of the birth. Such a request would have been granted. Instead, he used up his vacation entitlement early in the summer. Under cross-examination, Mr. Deans stated that he has never had any evidence, such as a medical certificate, to confirm that Page 9 Mr. McPeak was unfit for work on the Thursday shift in question. In fact, this issue had not been discussed when they met to consider the grievance at step one. However, counsel for the College indicated that the College accepted the grievor's assertion that he was unfit to attend work on the day in question. As for the issue of using vacation days for the birth, Mr. Deans testified that it was a factor in his decision on this matter even though the grievor was not required to do this. Had Mr. McPeak had any concern for the needs of the College, he would have taken a shorter vacation in June and July and used vacation credits at the time of the birth. Later in his evidence, he repeatedly denied that this issue entered into his decision on the matter. Mr. Deans told the Board that the grievor was a good employee. Further evidence from Mr. Deans indicated that he had carefully applied the provisions of Article 12 in deciding this matter. He had granted Mr. McPeak a day's paid leave under section 12.2 and a day's leave without pay under section 12.1. There was no suggestion of wrongdoing by the grievor on the day in question. While he did not call in, the College assumed his absence related to the birth of his child. No discipline was imposed on Mr. McPeak for his absence. Before proceeding to summarize the argument presented to the Board, it is useful to reproduce here in full Articles 12.1 Page 10 and 12.2 of the collective agremeent. 12.2 Personal Leave Without Pay Leave of absence without pay may be granted by the College for legitimate personal reasons. 12.2 Personal Leave With Pay Recoginizing the over-riding responsibility to the Students, leave of absence will be scheduled where possible to ensure a minimum of disruption to the educational programmes and services of the College. Reasonable notice shall be given to the Supervisor concerned. Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied. The Union's position is that while Article 12.2 gives the College discretion in granting paid leaves for "extenuating personal circumstances", it goes on to say "such requests shall not be unreasonably denied". In this case, the Union argues, management acted unreasonably in denying the request both by failing to consider relevant factors and by introducing irrelevant considerations in its decision. While management is entitled to have a guideline governing its practice of granting pay leave for new fathers, it cannot rigidly adhere to such a policy or practice but must consider all the factors of each situation in arriving at a decision. In this case, the Union contends, the College did not consider the complications in Mrs. McPeak's pregnancy and the unusually lengthy period of labour which led to the grievor's failure to attend work on Thursday of the week in question. Instead, Page 11 management fettered its discretion by rigidly applying a practice which the College had developed unilaterally and which was inappropriate in this case. The reason for the grievor's absence on Thursday were the same as these which led to his absence on Wednesday. If paid leave was appropriate for Wednesday then, according to the Union, it should also have been granted for the second day of absence. Furthermore, the Union argued, Mr. Deans, in arriving at his decision, considered irrelevant matters such as the grievor's earlier application for bereavement leave and his failure to set aside vacation leave to be used at the time the child was born. The grievor was entitled to bereavement leave under another section of the agreement and that should not have played any role in this matter. As for vacation leave, nothing in the agreement requires employees to cut short their vacations to reduce their requests for time off under Article 12.2. The Union referred the Board to a decision by Mr. Verity in Re. The Crown in Right of Ontario and OPSEU (April 9, 1988) unreported. On page 16 of the Award, Mr. Verity states: In cases involving the exercise of managerial discretion, Board of Arbitration generally hesitate to substitute their view for that of the decision- maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: Page 12 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discre- tionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant consideration must be rejected. The Union does not allege either bad faith or discrimina- tion in the matter before the Board. However, the Union argues that there was no genuine exercise of discretion here but rather rigid adherence to a policy of granting one day of paid leave to new fathers without considering the merits of the grievor's request. Furthermore, the Union alleged that in this matter, the College considered irrelevant facts while neglecting some relevant ones. The Union also referred the Board to a decision of Ms. Brent in Re. St. Clair College and Ontario Public Service Employee's Union (May 15, 1985) unreported. That case involved a clause in that agreement identical to the second paragraph of section 12.2 in this agreement. The grievor in that case requested paid leave for a day when he was absent because of a snow storm that prevented her from getting to work. The College had a policy of not paying for absences due to adverse weather conditions as long as the College remained open. ~er request was refused and she grieved. Ms. Brent in granting her grievance commented as follows on Page 13 Article 12.1.2 (which is identical to Article 12.2 in this agreement): When the language of Article 12.1.2 is examined, it is clear that it would be a formidable, if not impossible, task to try to catalogue all of those circumstances which could possibly qualify as being either "personal reasons" or "extenuating personal circumstances". The parties no doubt used those broad general phrases to reflect the reality that there are as many "personal reasons" and "extenuating personal circumstances" as there are grains of sand on the beach. The intent of the provision must surely be to give the employee the right to have his/her situation examined fully before a deter- mination is made whether or not to grant a request for leave with pay. It would be inconsistent with such a provision to allow the College to define either "personal reasons" or "extenuating personal circumstances" as encompassing every possible situation but one, in this case inclement weather. Furthermore, the Union argued, there was no evidence that the extra day's absence by the grievor caused undue diruption to the operations of the College. Section 12.2 specifically mentions "minimal disruption" as a factor to be considered in deciding on requests for paid leave. As for the grievor's failure to call in again on Thursday to report his absence that night, nothing in the collective agreement nor in past practice at the College would require Mr. McPeak to call in on Thursday. The College knew why he was absent. He had called in on Wednesday to report an expected absence and had not specified his expected date of return to work. Furthermore it was well established that employees on such leave were not required to call in daily. No discipline was Page 14 imposed for his failure to contact the College and indeed he was ganted a day's unpaid leave under section 12.1 by the College. If this was considered by Mr. Deans, it was improperly considered since it was irrelevant. We turn now to the argument advanced by counsel for the College. The College agrees that Mr. McPeak's absence on both days in question was for legitimate reasons. However, that does not automatically entitle him to paid leave for these absences. Management has discretion under Article 12.2. The College feels that discretion was properly exercised and that the onus is on the Union to show that Mr. McPeak's request was "unreasonably denied". Counsel for the College argued that the College's application of its discretion in this case was not discriminatory or illegal or arbitrary and that without any of these elements being proven by the Union, this Board should not lightly impose its judgment to overturn a proper exercise of management's discretion. The College was aware of the reasons for the grievor's absence on Thursday and considered this in arriving at its decision to grant unpaid leave under section 12.1 rather than paid leave under section 12.2 While Mr. Deans mentioned the grievor's failure to use vacation credits for this absence in his initial response to the grievance, he had testified that this did not colour his decision. This is supported by the College's third stage response Page 15 to the grievance where this issue is not mentioned. Even if it had been considered by Mr. Deans, that alone would not poison his decision. There were many other factors considered by Mr. Deans that would justify his decision. The College denies that there was any policy on the matter of leave for new fathers. What existed was a well established practice on this matter and consideration of past practice is legitimate in deciding on requests under section 12.2. Indeed it would be wrong not to give weight to a consistent practice to ensure that all employees are treated fairly. The fact that no one ever received more than a day's pay leave for this purpose does not establish that the College had an inflexible policy that fettered its discretion. In making his decision, Mr. Deans was aware of all the relevant facts and considered them carefully. The letter from Mr. McPeak prior to the grievance provided no new information to him. As for the grievor's failure to call in on Thursday, that was a relevant consideration. Whatever may be the practice concerning calling on while sick, it is irrelevant because we are dealing with section 12.2 which is unrelated to sick leave. Section 12.2 requires that the employee provide "reasonable notice" to qualify and no reasonable notice or indeed any kind of notice was provided for the Thursday absence. The grievor himself did not expect to be away on Thursday when he called in Wednesday. He was able to call in on Thursday and didn't do so. Management reasonably expected only one day of absence and should Page 16 have been notified on Thursday. For all these reasons the College asked the Board to deny the grievance. THE AWARD The Board has carefully reviewed the evidence and argument ably put to us by counsel for both parties. We agree with the College's position that section 12.1 and 12.2 give the College discretion in granting requests for either paid or unpaid leave. Article 12.2 requires that "such requests shall not be unreasonably denied". It also makes the College's responsibility to provide educational programmes with minimal discruption to students an over-riding consideration. We further accept the College's view that we should not lightly overturn their judgment in the legitimate exercise of their discretion. In this case, there was no evidence that Mr. McPeak's absence created any disruption to students. Indeed we were told that the summer months when this occurred is the time when student activity is at a minimum and vacations are taken by staff. We conclude that the exercise of discretion in this matter was flawed in that Mr. Deans considered irrelevant matters in arriving at his decision. In particular, he gave weight to the grievor's refusal to reserve vacation time for the anticipated birth of the child and also was influenced by the failure of Mr. Page 17 McPeak to report his expected absence on Thursday. Furthermore, we conclude that Mr. Deans in arriving at his decision in this matter considered himself bound by long standing practice. He felt that he should not deviate from the practice of granting only one day of paid leave regardless of the special circumstances in this case. We are satisfied that in other respects there were no improprieties. Mr. McPeak was given ample opportunity to explain his situation once he realized that pay had been deducted for one day's absence. While bereavement leave is mentioned in the initial reply to the grievance, we are satisfied that it is only mentioned to show that the College had been compassionate in the past and that it in no way entered into Mr. Deans' decision to grant only one day of paid leave at the time of these events. The Board concludes that because improper considerations entered into the decision by Mr. Deans, that decision cannot stand. The grievor is entitled to a remedy because his request was improperly considered and he therefore, was denied his rights under section 12.2 of the collective agreement. In these circumstances where only one day's pay is involved and where no one else's rights are at stake, we conclude it would be inappro- priate to remit the matter back to the College for reconsider- ation and we award the grievor an amount equal to one day's pay for his classification at the time of the events leading up to this grievance. Our decision follows the precedent set by Mr. G. Brent in Re. St. Clair College and Ontario Public Service Page 18 Employees Union (unreported award dated May 15, 1988). In reaching this decision we are not suggesting what the outcome of a proper consideraiton of Mr. McPeak's grievance would have or should have been. DATED at Toronto, Ontario this ~ day of ~_r3, 1990. r er ~ R. J. Gallivan E. Seymour DECISION OF R.J. GALLIVAN Article 12.2 of the collective agreement requires the College to exercize its discretion in a reasonable manner. "Reasonableness" is not an absolute. Rather, it is a continuum where, at one extreme, behaviour might be said to fall just within the bounds of reasonableness if for example two neoole viewing the same facts in good faith reached onnosite conclusions of "reasonable- ness", to the other extreme where the conduct being tested was so clearly within accented standards of reasonableness as to win sunnort from all observers. Arbitration boards in most cases are unwilling to substitute their judgements for those of the resnonsible manager when the latter's conduct falls within such a range of "reasonableness". That reluctance stems from the fact, among others, that boards are isolated from the consequences of their decisions and are not always sensitive to the dynamics of the on-going labour relationshin into which they intervene. It therefore is wise For the~ to give a reasonably broad meaning to "reasonableness". In our case, if I understand them correctly, the majority finds the College's denial of leave with nay for the second day of absence as unreasonable for three reasons: that it was an irrelevant consideration for the College to be influenced by the grievor's failure to save vacation time for a nlanned absence, that it was irrelevant that the Erievor failed to notify the College of his intent to be absent on the second day, and that the College was inflexible in followin~ its lon~-standing oractice of granting one day of naid leave on the occasion of the birth of a child. With respect to the first of these reasons, the majority's conclusion is exactly contrary to the evidence of Mr. Deans that, while he initially considered that the grievor could have saved vacation time for a nlanned absence, in fact after reviewing all the circumstances that particular consideration did not weiEh in his final decision. Since Mr. Deans's testimony on -2 - this ooint was unshaken in rigorous cross-examination and was totally consistent with the descriotion he gave of his fact-findinE and decision-makinE orocess throughout the episode, I acceot it and can find no justification for not doing so. I therefore disagree with the majority's conclusion on this ooint. However, there is no disoute ths~t Mr. Deans did consider the grievor~s failure to let the College know that he would be away for a second day. Surely in the manaEement of the ColleEe's human resources that failure cannot be considered an irrelevancy. The ~rievor was not suffering an indeterminate illness such that when he initially requested his leave he might exoect notice given to the College on the first day of absence to be adeauate to cover a reasonable future oeriod. Thus the analoKy with sick leave, which the union urged and the majority seems to accent, is irrelevant. 0nlv the grievor knew that the birth had been abnormal: the College did'not. 0nlv he knew that he planned to be away only for one extra day: the College did not. 0nlv he knew the date of his olanned return to work: he left the College guessing. In the absence of any information from him to exolain his absence - a simole ohone message we were told would have sufficed - the ColleEe had no way of knowing whether he might have become ill, resigned, been jailed, or had any other reason for his absence. The ColleEe assumed it was related to his child's birth and as a consequence gave him the benefit of the doubt for his unauthorized absence. To follow the reasoning of the majority one must also conclude that if the ~rievor had stayed away without further notice for some longer or indeterminate oeriod and later claimed retroactive leave and full pay for the time missed, the lack of notice for such an absence would be an irrelevant consideratinn in determining whether or not to grant the reauest. Such reasoning is obviously flawed but it is the conclusion to which one is led by the majority's decision that consideration of the grievor's failure to notify is a wrongful consideration in the exercize of discretion by the College under Article 12.2. Finally, I disagree with the conclusion that Nr. Deans's failure to deviate fro~ the College's oractice in such cases marred the decision. ~r. Deans's evidence was that he considered the College's practice but did not judge the total circumstances of this case to warrant better treatment than that accorded most other emoloyees. In arrivinE at that conclusion Mr. Deans considered a number of facts and circumstances, including those which in my view should be considered as relevant, and reached a conclusion which is within the bounds of reasonableness. ^ccordingly, I am not oreoared to substitute my judgement for that of a manager who acted resoonsibl~ and who made a reasonable decision in the circumstances.