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Home My WebLink About1992-3440.Chew.94-03-31 '" - ( ( ..' ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L 'ON TA RIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 3440/92 IN THE MATTER OJ' AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chew) Grievor - and - The Crown in Right of Ontario (Ministry of community & Social Services) Employer BEFORE: A. Barrett Vice-Chairperson P. KIYm Member A. Merritt Member FOR THE J. Paul GRIEVOR Grievance Officer I Ontario Public Service Employees Union FOR THE P. Toop EMPLOYER Employee Relations Officer Management Board Secretariat HEAR:ING February 25, 1994 ,." ( ( ? D E CIS ION ,- Mr Chew grieves that he has been improperly paid for statutory holidays contrary to Articles 48 and 19 of the collective agreement and the compressed work-week agreement negotiated between the parties The parties proceeded to argument based on an agreed statement of fact, which is reproduced below: II AGREED STATEMENT OF FACT Re Chew - GSB # 3440/92 [ 1 ] Mr Chew is employed by the MCSS and holds the position of Residential Counsellor 2, at Huronia Regional Centre. [2 ] Huronia Regional Centre is a facility for the Developmentally Handicapped, in Orillia [3 ] Mr Chew filed his grievance alleging improper compensation according to Article 19 and Article 48 [4] The Employer agrees that should the GSB rule in favour of the Union, the remedy would apply to all affected employees at the Huronia Regional Centre retroactively to the date of the Simcoe et al decision (Gorsky) which was released on August 11, 1991. [5 ] Appendix A is the Compressed Work Week Agreement (CWWA) which was in effect at the time Mr Chew's grievance was filed in December 1992 Appendix A remains in effect between Local 323 and Huronia Regional Centre, on consent of the parties [6] HRC has entered into CWWA's with Local 323 pursuant to Article 7.7 of the parties Collective Agreement since 1986. [7 ] These Employees are schedule 4 7 for which the normal hours of work are 40 hours per week as per Article 7 2 of the Collective Agreement ~ ---- -. \ ( ~ 2 -" [8 ] The normal hours of work for employees covered by the CWWA are set out in Article 2 Hours of Work [9J Employees not working on a Statutory Holiday (Article 48) pursuant to Article 19 4 are entitled to receive another day off. The Union's position is that as a result of entitlement to holiday pay under Article 48 and under Article 19 4, an employee who works a compressed work week should be paid the number of hours for a stipulated Holiday so that they would suffer no loss of income, i e 12 hours v s 8 hours which is the Employer position [101 Where an employee would normally have been scheduled to work on one of the paid holidays provided for in Article 48 1 and where the scheduled shift was for 12 hours, the emproyer pays on the basis of an 8 hour shift if [ 1] the employee requests the Statutory Holiday off [2 ] the employer schedules the employee off They are paid 8 hours and given the option of using accumulated credits, either vacation or compensating leave of 4 hours to ensure 12 hours pay for the statutory holidays [11] Simcoe et al decision (Gorsky) 1725/91 .. The union asserts, by way of preliminary objection, that the issue of pay for statutory holidays for people in Mr. Chew's position has already been determined by this Board in Simcoe et aI, GSB #1725/91 (Gorsky), and this panel of the Board is bound by that decision unless we find it is manifestly wrong and that exceptional circumstances exist which would persuade us to review that decision The union representative asserts that the facts, the collective agreement wording, the compressed work-week agreement and the issue are all identical to the Simcoe case, and that we I I - ? . / ( \ 3 should simply allow this grievance without hearing the "new" legal argument employer counsel wishes to put forward The employer representative concedes that the facts, issues and contract language are identical to the Simcoe case, but he has a new legal argument to raise in this case that was not raised in the Simcoe case He wishes to argue that the Simcoe decision results in a pyramiding of benefits, that the result leads to inequities between compressed work-week workers and regular eight- hour-a-day workers; and further that the Simcoe panel was not directed to Article A 1 of the collective agreement The employer representative urges us to find that Simcoe is manifestly wrong, and that the negative labour relations impact of the decision arising from the differential treatment of employees, and pyramiding, are the exceptional circumstances required by Blake et aI, GSB #1267/87 (Shime) to permit us to review the Simcoe decision. The employer did not wish to introduce new evidence in this case that was not available to the Simcoe panel, but simply wanted us to entertain a new argument about pyramiding and a purposeful interpretation of Article A 1 of the collective agreement The employer representative points to a statement in the Simcoe case at page 8 as red-flagging an argument that if it had been put forward might have led to a different result. The statement is "There was no suggestion that an employee under the compressed work week was Obtaining a benefit akin to that which would be obtained where pyramiding existed " 1........-.....-- __ ? ( ( 4 . The employer representative also noted that the Blake requirement for exceptional circumstances has been questioned by the Divisional Court in Dupuis, an unreported decision dated May 8, 1990, where the Court, in obiter, said "We are in agreement with the manifest error policy Because we are satisfied that was the basis on which the Board approached its task, we do not find it necessary to make any pronouncement on the appropriateness of the exceptional circumstances test, but I should not leave it without saying that we have some concerns with it " The union representative referred us to several Grievance Settlement Board decisions setting out the test for when a second panel of the Board will hear a factually-identical case to one that has already been decided by another panel of the Board, where new evidence was sought to be introduced or a new legal argument was sought to be put forward In Gould & Field, GSB #674/88 (Knopf), the Board said "We would no sooner let an employer try to relitigate an issue such as this if it lost the first time around and carne back offering new evidence on practice that it had inadvertently not marshalled the first time. Nor would we allow any party to proceed to relitigate an issue on the basis of a newly conceived argument simply because it has not been pressed forward earlier " In Blondin et aI, GSB #78/89 (Slone), at page 7, the Board held "Bressette must be followed, unless special circumstances arise which mandate a departure It would be foolish to speculate on what special circumstances might arise and be held sufficient What clearly ought not to amount to special ,.,.. - { ( t, 5 . . circumstances would be the raising of a new argument that could have been but was not made to the earlier panels .. We allow this grievance (and the many related ones as agreed by the parties in their agreed statement of fact) for several reasons First, the issue has already been determined in Simcoe et al and no exceptional circumstances exist that would persuade us to relitigate the issue Secondly, we do not think Simcoe is manifestly wrong in fact, we think it was correctly decided Third, although we did not hear argument on the pyramiding issue, it strikes us on the agreed facts that it is decidedly weak We do not interpret the reference to pyramiding in the Simcoe decision to be an invitation to relitigate the issue based on that argument, but rather a finding of fact As requested, we will remain seized of jurisdiction in the event there is any difficulty implementing the award for this grievor and the related grievors as agreed by the parties Dated at Toronto this 31st day of March, 1994. ~L/d:SfL- A~~Chairperson P. Klym, Member C-"( LL ~'W\.x ^ A A g- A. Merritt, Member ~~- ~ ~~ ~-