HomeMy WebLinkAbout1989-0768.Wilson.90-02-08 ',<,~-; '..," .i ,,';~':, .:" ' ' ON TA RIO EMPL OY':cS DE LA COURONNE
~' ',~.., ~ t. " CROWNEMPLOY&ES DEL'ONTARIO
'"" ': GRIEVANCE C.OMMISSION DE
/ / SETTLEMENT REGLEMENT-.
BOARD DES GRIEFS
180 OUh'DAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TEL=-'='wONE/TELE'~ONE
180, RU£ ,.~UNDAS OUE.$T, TORONTO, (ONTARIO) MSG 1Z8-BUREAU2100 (41E :-~-0688
768/89, -79/89, 780/89
IN THE MATTER OF AI~ ARBITRATIO5
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV;%NCE SETTLEMENT BOARD
Between:
OPSEU (Wilson)
Griever
- and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before:
J.W. Samuels Vice-Chairperson
G. Majesky !~ember
M. O'Toole ?~ember
Pot the Grievor: G. Richards
Senior Grievance officer
Ontario Public Service
Employees Union
For the Employer: M. Galway
Staff Relations officer
Ministry of Correctional Services
Hearing: December 14, 1989
~c~s~oN 2
The grievor filed three frivolous grievances. They are all dismissed.
The grievor is a correctional officer. She has worked for the
' ' Ministry since 1985, most recently at the Metro West Detention Centre and
then since February 13, 1989, at the Barrie Jail.
On April 1, 1989, she filed a grievance alleging unfairness and
discrimination because management had removed her from the work
schedule for the statutory holiday on March 24, 1989. She had been
~ :~ scheduled on the master rotation to work the day shift on that day, but
~,:,' management did not need all of the employees on the list for the°day shift,
so seven employees were given adequate notice that they would not work
on the statutory holiday. The grievor was one of these seven. Later, one
of the seven was assigned to work the afternoon shift on March 24. The
grievor enquired of the scheduling officer whether there was some system
to determine who would work on the statutory holiday, and finding that
there was no adequate answer, she feels that the system is unfair. She feels
that her seniority should have found her a place on the roster for March
24.
The grievor received holiday pay. for March 24. Had she worked,
- . ..... she would have received double time plus eight hours off in lieu.
· But the collective agreement gives no special priority to senior
employees for work on statutory holidayS~ Arid the grievor and Union
acknowledge that this Board has often and unequivocally said that the only
right an employee has with respect to a statutory holiday is the right to the
holiday pay. There is no right to work on the holiday, and management
can schedule whom it wishes, provided the scheduling notice provisions are
complied withmsee, for example, Ferguson, 78/82; Birse, 338/83; and
Bothara and Gillies, 316/88. Section 18(I) of the Crown Employees
Collec'.ive Bargaining Act sets out a management rights clause which is
... deemed to be included in any collective agreement. Pursuant to this
3
provision, the employer has the exclusive right to determine "complement.
organization, assignment".
The ,nevor s claim is entirely without foundation and the point she
raises has been clearly decided by this Board in the past.
On April 10, 1989, she filed a grievance asking for compensation for
her efforts in collecting money owed to her as a result of an earlier
settlement of a grievance. The settlement was made on Janu.ary 20, 1989.
and obligated the Ministry to pay her $350.
· .... The Ministry took three months to pay (the payment was received by
-' the grievor on April 21). The grievor thought it would take about a
month. We accept that normally one ought to be paid promptly.
Apparently the Ministry payroll department was in the process of a move
from Toronto to North Bay at the time and this caused additional delay.
in early March, the grievor received permission from her
supervisors to use the phone at the Barrie Jail to call Toronto to find out
where her $350 was. On March 13, she made her first call, and then
· - within the week, she made four or five more phonecalls to people in the
Ministry in Toronto. On March 20, she spoke with Mary Capobianco, who
is in the Metro Region Personnel Office (Capobianco had signed the
"? original settlement). The grievor testified that Capobianco said "If you
~- want payment, come to Toronto to get it".
We aren't sure the entire context of this remark, but it appears to
have been made out of sheer frustration by Capobianco. Obviously it
makes no sense to drive to Toronto to collect $350. But that is what the
grievor did on March 21. She went to the Metro West Detention Centre
and they had nothing for her. She returned to Barrie. On April 4, she
went to the Metro West Detention Centre again. Same result. She*also
ma'de some telephone calls on her personal line.
4
Now, she claims mileage for two trips to Toronto (286 km per trip),
eight hours pay for the time the trips took, and around $5.00 for the phone
charges on her personal line--a total of $200 to $250! All of this to collect
$35O.
Given that the interest she might have lost on $350 amounts to about
$3.50 per month, her claim of over $200 to 'reimburse her for her efforts
to speed the payment is absolutely preposterous. A few phonecalls and a
letter or two _would have been reasonable. There was never any suggestion
that she wouldn't be paid. This was not a case requiring heroic efforts to
effect collection.
In these circumstances, her grievance has no merit whatsoever.
· ;
The Ministry had several preliminary objections with respect to this
grievance--firstly, that the Board had no jurisdiction to hear a grievance
concerning a memorandum of settlement; secondly, that the grievance was
not processed through the grievance procedure; and, thirdly, that the
referral to the Grievance Settlement Board was out of time. We have
decided that it is best that we comment on the merits of the grievance. And
having come to the conclusion which we have, it is unnecessai-y for us to
decide upon the preliminary objections raised by the Mirdstry.
...... ~ On June 7, 1989, the grievor claimed that she had been denied
· payment of expenses incurred while attending a mandatory training session.
This is the most ridiculous grievance of the lot.
On April 25 and 26, there was a training session at an Inn seven
kilometres from the Barrie Jail. The employees were told that they would
not-get any allowance for lunch. There is nothing in the collective
agreement which requires a meal allowance in these circumstances. Article
17.2.4 does provide for the possibility that management may authorize the
meal allowance. It wasn't done here.
5
The grievor spent $5.35 one day, and $3.85 the next on her lunches.
Normally at the Jail, she spends $2 to buy a meal voucher. So the two
lunches at the Inn cost her an additional $5 and pennies.
Apparently the grievor is upset b~cause, while she was at the Metro
West Detention Centre, she did get a meal allowance for some training
sessions.
Well this previous experience gives her no right to a meal allowance
on this occasion. Perhaps she had a right to the meal allowance in the
previous circumstances because of the distance travelled to the training
sessions. Or, the department head on these earlier occasions just decided to
authorize a meal allowance.
The grievor knew there was nothing in the collective agreement
giving her the right to these allowances. And the extra cost for her was
trifling.
This grievance is absolutely frivolous.
We are very concerned about the fact that these three grievances
came to this Board.
The Board is a service provided at public expense. It is important
that the public purse not be abused. By pursuing these three entirely
meritless grievances to arbitration, the grievor has imposed a cost on the
--. public purse of thousands of dollars (for travel by witnesses and advisors,
for fees to the members of the Board, for other incidental expenses).
And this Board is overtaxed. Scheduling her grievances to
arbitration meant that some other grievance would have to wait. Some
other member or members of the bargaining unit, perhaps with a pressing
and legitimate claim, would have to wait for a later opportunity to come
before the Board.
The grievance and arbitration procedure under the collective
agreement is not a licence to file frivolous grievances. The Preamble to
.:
-.,
6
the collective agreement says that one of its purposes is to "establish and
maintain a pr0~cedure for the prompt and equitable handling of grievances
and disputes". It is simply not possible to meet the demand of "prompt and
equitable handling" if the Board's time is Wasted on grievances like the
three which came before us.
Article 27.1 of the agreement, dealing with the grievance procedure,
says that "It is the intent of this Agreement to adjust as quickly as possible
any complaints or differences between the parties". Surely this must mean
a very hasty resolution of grievances which have no merit whatsoever. "
'i'-': ~i:' While we appreciate the Union's feeling that it is obligated to its members.
-.' to bring any grievance before the Board if the member so wishes, in our
view, Article 27.1 also imposes an obligation on the Union to "adjust irs:
quickly as possible" grievances which are obviously without any merit.
It was frivolous of the grievor to file these three grievances. It was
vexatious and unconscionable of her to pursue these grievances to
arbitration.
Done at London. Ontario, this 8th day of February , 1990.
els, Vice-Chairperson
/~~. Ma~~j ' (Addendum attached)
esky, Member
M. 0 Toole, Member
.- L
Between:
OPSEU (WILSON)- 768/8Q
and
The Crown in Right of Ontario
(Ministry of. Correctional Services)
Union Nominee Addendum
After reviewing the award of the Board, I feel as thc'dgh I must
comment on certain aspects of the award and make some additional
opinion that I hope provides a fuller perspective concerning the
griever, the grievances filed, and the political environment at
the Ministry concerned.
Specifically, the griever filed three grievances, cne dealing
with rotating shift where the griever was taken-off scheduled
duty roster, another concerning a meal allowance when in
attendance at a conference, and the third where the grie.~or
sought to obtain monies that wer.e-forthcoming under a memorandum
of settlement between the Ministry and the griever. Regardless,
I will not belabour the merits of the three grievances, but, I do
think there are several particularly illuminating realities which
mitigate in the particular circumstance~ to a great degree.
This board would be wholly irresponsible if we do not look at the
political environment that this ~rievor works in. They are
inextricable ie., the griever, the Ministry, and the political
problems which have plagued this Ministry over the last three
..~ years. All of this coming to a head in the fall of this year
l
with the lock-ins and the political unrest that the correctional
officers had demonstrated, thus forcing the government to take
appropriate action with respect to under-staffing an~ working
conditions.
How this mitigates in t~-.e grievor's immediate instance is not
specifically clear, but there is no question, from my
perspective, that the en'~-ironment politically has been .roisoned.
And as a result, the kinds of grievances we have before us are an
extension and manifestation of the labour relations climate in
the Ministry. It doesn't take long for one to r. ake the
comparison or parallel ketween the Ministry of Corrections and
Canada Post. And I think we have a responsibility as a Board to
delve a little deeper into the political stew that ferments this
kind of employee discontent and grievances.
In terms of whether or not the grievor had a right to file these
grievances, some questio~ has been raised about the checks and
balances where grievances should be vetted at stages ~rior to
coming to hearing, enabling only the "cream of the crop' to come
before the Grievance Settlement Board. I don't believe there is
anyone who would argue there isn't a vetting procedure in place
ie., OPSEU has competent service representatives, shop stewards,
and a fairly active and sophisticated member education program to
give members the tools tc identify and advocate on the kehalf of
~he members.
These are Dart of the checks and balances that are politically in
place which facilitate the maintenance of the members rights.
Whether or not the Bcard agrees with merits of this case, .the
fact is the grievor is a shop steward, is fairly political and
militant, and as a result has. taken her task to heart that she
must challenge the employer on these grievances because she feels
some wrong doing or inappropriate administrative action has been
~.-~ ~ leveled.
Further, although OPSEU's Constitution provides members the right.
to 'challenge grievances to the arbitration stage, I believe there
is a responsibility which is .exercised on the part of OPSEU staff
and the members to solve at stages previous to the hearing,
outstanding grievances. One only has to look at the number of
settlements and cancellations of hearing scheduled to proceed.
The Board may feel that union members have absolute carriage and
that somehow there is no fetter on the members pursuing
grievances to arbitration. I would say that is inaccurate .in
· ~ that there is responsibility on the part of staff representatives
and grievance officers to act as grievance settlement officers
and put matters to bed, if possible. In addition, there is a
great degree of human judgement which is exercised properly and
professionally on the part of the membership and OPSEU staff.
And we can't be toc hasty in our suggestion that because we
disagree with the merits of certain grievances, that somehow the
whole system is predicated on the rationale that all issues come
"'-~ to arbit"~tion This proposition is abso!utelv false and
inaccurate in reality. Further, there are statutory p_~visions
that give the members the right to challenge grievances at
arbitration. So not only do the grievors enjoy the priv' leges of
their union constitution to come forward with their corolaints,
but they also have legislative guarantee's. Sc it'_= not as
though the fly.in the ointment is the OPSEU constitution if the
Board disagree's with merits of this immediate case c_-.ming to
hearino. But it's the entire bundle of rights, both l~~~sletive
and union, that give members the confidence and assurance that
they do have a mechanism in place. It is the members version of
the Charter of Rights in their workplace. And it is bee!thy and
g~neral!y works well.
Upon reviewing the reward, it appears the language is '~ather
strong and I find the remarks intemperate, even within the
context that the award is a one-off award. I feel we l~ve to be
careful regardless of any predisposition to hearing cases based
on various merit, whether frivolous or otherwise, that we leave
grievors with a sense of justice and fair-play. GrJ~vors who
avail themselves of the process Should be encouraged to do so,
because to do otherwise is a counter-productive exercise'which in
the future may have the potential of inhibiting other ~rievances
coming forward which should be adjudicated. What may ~Ltimate!y
inhibit the pursuing of future grievances may very well be the
distaste left in the grievors mouth after reviewing the award in
this matter and the kind of language that it was writt~l in. The
reason why we must exercise a little more restraint is that this
grievor ma~' fulfill the duties of shop steward for many years and
be responsible for her own grievances, but more importantly, may
be the reFresent~tive of other correctional workers who may be
totally de.renden[ on the 9rievor to represent them in matters of
grave concern ie., violations of the collective agreement, rights
or otherwise. Sc it is particularly significant that the broader
implications of how the grievor leaves this process an~ her
general disposition be considered becasue, the grievor may well
have ~-to utilize the process to represent other members of OPSEU.
That is a '~-ery irportant and critical role that union leadership
must perfcrm in OPSEU, and the Labour Movement in general. As
well, I believe it is common knowledge there are problems in the
Corrections Ministry, and the award does nothing productive in
this regard, and might further aggrevate "the tempest in the
teapot" .
For these reasons, I believe this board has to be more cognizant
of the protlems :_n the Corrections Ministry.
Respectfully subr. itted by,