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HomeMy WebLinkAbout1991-0537.Chiasson & McDonald.93-07-07 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR~. MSG 1Z8 TELEPHONE/T£L~PHONE: (416] 326-1288 780~ RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG ;Z8 FACSIMII. E/T~L~COPIE : (416~ 326- I396 537/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIV~ BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BO~%RD BETWEEN OPSEU (chiasson/McDonald) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE: W. Low Vice-Chairperson I. Thomson Member D. Halpert Member FOR THE K. Whitaker UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of Community and Social Services HEARING April 9, 1992 September 21, 1992 November 27, 1992 June 4, 1993 DECISION There were two grievances argued at this hearing, namely the grievance of Diana Chiasson and the grievance of Merrilyn McDonald. 'The grievances are identical. Both Grievors grieve that they have been improperly denied overtime for December 1, 1990 and December. 2, 1990, and the Grievors claim compensation. At the opening of the hearing, the Board was advised that it was the Union's position that the Employer's act in not offering overtime work to the Grievors was disciplinary in nature, and it was contended on behalf of the Union that the discipline was unjust in the circumstances. The facts are relatively straightforward. The Grievors work as income maintenance officers at the Ministry of Community and. Social Services at Sudbury. In 1990, because case loads were ever increasing, the file room'where the Grievors work w~s getting backlogged, and although an attempt had been made to alleviate the problem, the backlog was not eliminated. On October 26, 1990, a meeting was held of the income maintenanc~ staff. A number of items was discussed, among them the backlogged file room. It was proposed that everyone spend a day filing, with a schedule to be made up using six volunteers per day. The Gfievor Ms. Chiasson expressed her opinion that the backlog in the file room ]had been mismanaged by management. She stated that management chronically refused to lislen to the suggestions of the staff, mismanaged and then asked the staff to repair management's errors. Ms. Chiasson also stated at the meeting that the field staff were presently overworked and that she did not have any time to contribute to work that was not her own. Ms. Chiasson testified and Joanne Boivin, who was the acting income maintenance supervisor, corroborated, that Mary Streich, the district manager who was present at the meeting, was visibly angry at Ms. Chiasson' comments. The result of that meeting was that the filing backlog problem would be looked after on a volunteer basis, and members of the staff were to contact their respective supervisors if they were prepared to give a whole or half day over to filing. Neither Ms. Chiasson nor Ms. McDonald volunteered. Subsequently, when it became apparent that the problem was not resolved, management decided to set two days, December 1st and December 2nd, 1990, during which days six people would come into work overtime to clear up the filing backlog. A file clerk collected the names of volunteers among the income maintenance officers and clerical staff to do the overtime work. Joanne Boivin, the acting maintenance supervisor, prepared a memo dated October 31, 1990, eliciting volunteers and Ms. Chiasson and Ms. McDonald both volunteered. Neither, however, was chosen to work the overtime. There were seven volunteers for overtime. Of the five chosen, all were classified as clericals, although one was acting as an income maintenance officer at that time. Of the five chosen, two had volunteered earlier for the filing bee. The other three who had been chosen had not volunteered for the filing bee. Ms. McDonald had not volunteered for the filing bee and was not a filing clerk by classification. She also had not spoken up in criticism of management at the October 26th staff meeting. Ms. Chiasson was not a clerical staff member, had not volunteered, and she had spoken out critically of management at the October 26th meeting. On November 23, 1990, upon having learned that she was not chosen to work overtime, the Grievor Ms. Chiasson wrote a memo..to Joanne Boivin, the acting income maintenance supervisor, as follows: "Re: Overtime Denial for First Weekend of December 1990 I would like to be advised as to why I have been denied overtime to assist the file room in getting caught up to date. If you wish to discuss this, please advise. If not, a written response is requested. If a written response is received, I will consider it the informal discussion part Of the grievance process. A denial of overtime can be considered disciplinary." Ms. Chiasson did have a conversation with Ms. Boivin on the subj~x:t during which Ms. Boivin replied that it was by reason of the exercise of management rightal that Ms. Chiasson was not chosen to work overtime, and Ms. Chiasso'n asked: "What about open and honest communication?", to which Ms. Boivin replied:~ "You're getting it.". The overtime was to have been worked on a weekend, and it appears that prior to the weekend, one of the clerical workers who had been chosen to work the overtime had let it be known that she was not available after all. It is the contention of the Grievors that one of them at least should have been asked to stand in the :place of the clerical worker who was dropping out. Ms. Boivin was cross-examined on the point, and she explained that she; had been out of the office for three days that week, that she had returned on the Friday to a number of very urgent matters on her desk, and had not put her mind to the issue of substituting one volunteer overtime worker in the place of another as she had a number of other matters pressing upon her. It appears as well that she did not know about the unavailability of the clerical volunteer until the Friday. It was acknowledged by both Grievors that it was Ms. Boivin who made the selection as to what staff members would be working the overtime. This was also the evidence of Ms. Boivin who testified that although Mr. Streich had the ultimate say as to whether overtime was going to be offered or not, he did not participate in the choice of workers. It is the contention of the Union that management exercised its choice of workers for overtime in such a way as to punish the Grievors either for being critical of management at the October 26, 1990, meeting or for not volunteering to do filing work when volunteers were elicited. We were asked to draw the inference that Ms. Boivin was exercising her choice of workers for overtime in such a way as not to anger .or offend Mr. Streich who might be displeased if members of staff who had been critical of him were chosen to work overtime. Ms. Boivin testified that she did not view the critical remarks or failure to volunteer for filing duty as cause for any discipline, that she did not intend to dispense discipline in her exercise of choice of workers for the overtime, and she was not of the view that any discipline was justified. It is of course the Union's onus to make out the case that discipline had in fact been meted out, and on the basis of the evidenCe' which was presented, we are unable to find that that onus has been met. As has been noted above, there were several staff members chosen for overtime who had not volunteered. This is inconsistent with a motive to punish for failing to volunteer. Ms. McDonald had not expressed criticism of management at the October meeting, and this is therefore inconsistent with a motive for punishing for being critical. Ms. Boivin made the choices and it was not she who had been offended and angry at the meeting. The only commonality among the five staff members Chosen to do the overtime wa.,i that they were all clericals by job classification, and filing was one of their chief occupations on a day-to- day basis. Although Ms. Chiasson testified that in her view the income maintenance offiCers were better able to do the filing than file clerks, I prefer the evidence of Ms. Boivin that it was the file clerks who were better suited to do the filing. In the circumstances, to h,Lve chosen clericals to do overtime filing was a reasonable exercise of management's fights to assign the overtime work, the Collective Agreement being silent as to the manner in which overtime is to be assigned, and we are not able to conclude on the evidence that the exercise of the choice of overtime workers was done with a disciplinary motive. Every exercise of a choice of this kind might be experienced or perceived by an unsuccessful competitor as a species of punishment, and where the working environment is charged, there may be a tendency ~to interpret more in the employer's actions or inactions than is there. Having concluded that the evidence does not support the contention that the exercise of overtime workers was d!isciplinary ! in nature in these circumstances, we do not comment on whether or not an act on the part of the Employer to decline an Employee's offer of overtime services can be disciplinary. The grievances will therefore be dismissed. DATED this 7th day of juty1993. W~airperson ~D. HALPERT -