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HomeMy WebLinkAbout1993-1262.Gallucci et al.96-03-27 ~~ .. ~...:..... ,~'? ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO __ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT . . BOARD DES GRIEFS r 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 ,180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1262/93, 1263/93, 1264/93 OPSEU # 93F506,93F507, 93F508 XN THE MATTER OF AN ARBXTRATXON Under THE CROWN EMPLOYEES COLLECTXVE BARGAXNXNG ACT Before THE GRXEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gallucci/Ansell/Cappuccitti) Grievor - and - The Crown in Right of ontario (Management Board Secretariat) Employer BEFORE F Briggs Vice-Chairperson FOR THE R. Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M. Nixon EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 15, 1995 August 28, 29, 1995 -, ? ~ t\ Enzo CappuCClttl, Billie Ansell and Eugerno GallUCCI filed gnevances allegmg that they have been scheduled mappropnate hours for Schedule 6 employees and ask for complete redress. At the tune of the filmg of the gnevances, the gnevors were Systems Officer 2 (heremafter referred to as S02) and had, as a pOSltlontltle, Sernor Network Operatlons SpecIalIstS. It was the Drnon's posltlon that the gnevors should be categonzed as Schedule 3 7 employees fu the altematlve, If tlns Board IS of the View that the gnevors should remam as Schedule 6 employees, an order should be Issued obbgmg the Employer to schedule appropnate hours of work for the gnevors Fmally, the Drnon and the gnevors took the pOSItion that the Employer IS obbged to act reasonably and ItS failure to properly aSSIgn 'the gnevors appropnate work schedules IS lUlfeasonable and cannot contmue the Employer took the pOSItIon that I was WIthOUt JUTIsdlctlon to deal WIth tlns matter But that Issue of JUTIsdtctlon would be argued at the conclUSIOn of the heanng on the mertts The Employer also asserted that the schedulmg of hours of work was a managem~nt nght. The gnevances were filed m April of 1993, and accordmgly, were subject to Sectlon 18 of the Crown Employees Collective Bargaining Act (heremafter referred to as '''CECBA'') fu the altematlve, If CECBA does not govern that penod, the deslgnatlon of employee schedules falls squarely Wlthm those mstoncal nghts held by management and there IS nothmg mthe Collectlve Agreement fettenng those nghts. The. Employer IS not obbged to act reasonably but, m the event that tlns Board does not agree, the Employer has not acted ill an arbItrary or unreasonable manner Indeed, the Employer has acted m a manner wmch IS consIstent Wlth fiscal restramt and sound busmess practlces. The p~es agreed to the followmg facts 1 Article 7.3 of the collective agreement governs Schedule 6 employees setting out their minimum hours of work at 36.25 hours per week. No maximum is set out. Schedules determine hours of work , whereas classification determines job duties This grievance concerns the former 1 .-- ._, ---.-..--- ---'".~._- - I ~ ! . (! 2 2. Pursuant to the Public Service Act, the government assigns specific job classification to Schedule 6 Under Article 7 6 of the collective agreement, the government can move classifications from one schedule to another, but it must discuss it with the Union first. 3 The OPS agreement confers some overtime provisions in Article 13, and holiday provisions in Article 19 For instance, under Article 13 1 1 employees in Schedule '\ 3 7 and 4 7 are entitled to overtime pay Under Article 13 7 1 Schedule 6 employees "who are required to work on a day off, shall receive equivalent time off" Similarly, under Article 19 7 "employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 48 (Holidays) shall receive equivalent time off" 4 Accordingly, under these provisions it would appear that Schedule 6 employees are entitled to lieu time only for days worked on a day off or an a statutory holiday 5 The employer recently agreed that Article 19 ~ would also apply to Schedule 6 employees which means they would receive 12 hours lieu time when a holiday falls on a scheduled day off (June 2, memo from Don Andrews to Network Operations I Staff) r 6 At the time of filing this grievance Ansell, Cappuccitti, Gallucci were all classified as Systems Officers 2 and subject to Schedule 6 (collective agreement, page 154) 7 In September 1992 the employer was successful in bidding for contracts which moved Network Operations to a 24 hour a day, 7 day a week operation. Both prior and post September 1992 the grievors have been designated Schedule 6 The relevant prOVISIOns of the CollectIve Agreement are ARTICLE 7 - HOURS OF WORK 7 1 SCHEDULE :3 AND 3 7 The normal hours of work for employees on these schedufes shall be thirty-six and one-quarter (36-114) hours per week and seven and one-quarter (7":114) per day 7.2 SCHEDULE 4 AND 4 The normal hours of work employees on these schedules shall be forty (40) hours per week and eight (8) hours per day 7.3 SCHEDULE 6 The normal hours of work for employee on this schedule shall be a minimum of thirty -six and one-quarter (36-1/4) hours per week. 74 SCHEDULE A I i, ~ , '$ 3 Averaging of Hours of Work - see Appendix 3 attached. 7.5 Where the Employer adjusts the number of hours per week on a schedule, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly The adjustment will be discussed with the Union prior to such adjustment being made. 76 Where the Employer intends to transfer ,employees or an employee. from one schedule to another schedule, the employer will discuss the transfer with the Union prior to such transfer When the transfer occurs, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly As set out at page 154 of the Collective Agreement, the classIfication of SO IS set out WIth the appropnate salary ill the "Schedule A", the hours of work schedule IS also lIsted for all classIfications Systems officers I through 5 are lIsted as Schedule 6 employees Mr CappuCCIttl and Mr GallUCCI testified on behalf of the Umon. As S02's they manage I computer networks, troubleshoot ill the event of problems WIth the system and generally handle complamts. All computer tennmals m all of the 1Il11l1stnes throughout the Provmce are lmked together and to several mamframes. The gnevors aSSIst people who cannot access then computer for whatever reason and, whenever necessary, they contact vendors m an effort to ensme the smooth operation of the entIre commumcation system. As mentioned ill the agreed facts, ill September of 1992, the system expanded conSIderably At that tune approxunately 20,000 personal computers or tenmnals were hnked and Sillce that tune about another 20,000 have been added. , r '- Pnor to 1992, the S02s were conSIdered Schedule 6 employees. Accordmg to Mr CappUCCIttl, when he was hrred m 1991 It was mentIoned that there was a possibilIty that the hours of work would expand to allow for twenty four hours per day, seven days a week. There IS no dtspute that the Employer dtscussed the Issue of changmg hours WIth employees and WIth the Umon. Both Mr CappuCCIttl and Mr GallUCCI testified that pnor to 1992 there was more flexibihty WIthm theIr schedule. While they were expected to be at work dunng -- ~_._--- '--:-~--~~....,..---_.. ~_.~~-.~_. --.--. ----_.~- -----.~-~.- .__.... ___ _ _..___-.. ._....;._~...rl--._ ~._~__...." ~_._~.._,_..__..m_.,__.._ __~'"~.'. , . . ~ \ j / 4 \ the daytune hours from Monday to Enday, It was understood that therr tIme was flexible as long as there was always at least one 802 to respond to calls. After the change to a twenty- four hour operatIon was announced, the Employer allowed the 802s to detennme therr own schedule They opted to work a twelve hour slnft and elected to work the same tIme schedule worked by the Data Base Techmclans m the same workplace Mr GallUCCI explamed that S02s do not receIve overtune compensation as do Data Base T echmclans In the event that they stay longer than twelve hours they receIve eqwvalent tune off. However, they do receIve call back pay If they are called mto work pnor to the commencement of therr next sluft. Mr GallUCCI agreed that he understood that the Issue of Schedule 6 IS a matter that IS bemg discussed at the bargammg table. Both Mr Cappucclttl and Mr GallUCCI agreed there was a real need for twenty-four hour per day coverage Mr Don Andrews was the Co-Ordmator of Network OperatIons at the tIme of the filmg of the gnevances. He testIfied for the Employer regardmg the evolutIon of the department. He referred to the mcrease in client demand as a result of the changes m 1992 and the need to proVide cntIcal apphcatIons. He testIfied that although the work schedules of the S02s were predIctable there was some flexibility WIth respect to mmVldual requests for tIme off for appomtments. However, there must always be at leas~ one person at work. He estImated that the work load had tnpled smce 1992. Dunng the course of the eVldence the partIes agreed that the actual hours of work of the S02s and therr work schedules were modelled after the Data Base TechnICIans. 80s are Schedule 6 ~mployees and Data Base Techmclans are Schedule 3 7 employees i ~. ~ 5 UNION SUBMISSION Ms. Murdoch, for the Dmon, began by suggestmg that there were lIttle, if any, dIfferences In the eVIdence regardIng the work. The 1ssue for th1s Board to address 1S whether the Employer's refusal to change the gnevor's work schedUle 1S unreasonable glVen the clfcumstances of th1s case The eVIdence revealed that the gnevors are workmg a schedule that 1S vrrtually 1dentlcal to other employees who are Wlder a drfferent schedule It 1S for th1s reason that the gnevors ask th1s Board to uphold therr gnevances. Ms. Murdoch stated that the Dmon does not take 1s~ue W1th the cp,ange to twenty-four hour, seven days per week schedulIng rmplemented In September of 1992. Nonce was glVen and the alteration was for legt.tlmate busmess reasons. However, 1t would have been appropnate at that time for the Employer to look at the way the workplace was changmg 1tS delIvery of servIce. If 1t had done so, the gnevors and therr co-workers would have been changed from Schedule 6 to Schedule 3 7 because of the nature of the new work. There was a pos1nve obhganon on the Employer. at that time to utilize Artlcle 7 6 and change the schedules of the S02s. The Employer's failure to do so at that tlme was arb1trary and unfarr The Employer's failure to change the gnevors from Schedule 6 has a s1gmficant effect. There are a number of Collectlve Agreement prOVISlOns wInch do not apply to employees who are cons1dered Schedule 6, such as overtnne. The Dmon argued that the Employer ought not to be allowed to abuse Schedule 6 so as to save money by not paymg certam premIums. The eVIdence revealed that the gnevors work regular and predIctable hours and that should take them outs1de of Schedule 6 Further, the eV1dence showed that the gnevors work the same schedule as other employees In the workplace that are under Schedule 3 7 Once havmg made a pnma fac1e case that these J --~ --.-- ..- _.-..-_... _._-~_..- "--- '--.'-'- --- ,- ._.~-- -~ ~. 6 ) employees do not fit the charactenstlcs of Schedule 6 employees, the onus shIfts to the Employer to show why Its failure to change the gnevors to Schedule 3 7 IS not an unproper exerCIse of ItS mscretlonary powers under ArtIcle 7 6 Regardmg junsmctlon, the Dmon stated m Re Ontario Public Service Employees Union and Carol Berry et al and The Crown in Right of Ontario (Ministry of Community and' Social Services) (March 13, 1986), (ReId J), DIVISIOnal Courtdetermmed that the Board had the authonty to order the Employer to establIsh a new classmcatlon. It therefore follows that I have thejWl.smcnon to change the gnevors' Hours of Work Schedule. The Dmon urged a findmg that the Employer has exercIsed ItS mscretlon m an unreasonable manner The Dmon also requested that I fInd that the gnevors should be paId for all overtnne and holIday pay owmg from the date of the gnevors, subject only to the Social Contract Act. In the altematlve, Ms. Murdoch stated that IT I fmd I am WIthout junsmcnon to change the gnevors' Hours of Work Schedule the Board should find that the gnevors' actual work schedule deVIates sufficIently from Schedule 6 to order that overtnne be p31d. The Dmon relIed upon Re The Crown in Right of Ontario (Management Board of Cabinet) and Ontario Public Service Employees Union (Union) (August 23, 1990), unreported (Snnmons), Re The Crown in the Right of Ontario (Ministry of Labour) and OPSEU (Baker/Elliot) (October 31, 1990), unreported (KIrkwood), Re T~e Crown in Right of Ontario (Ministry of Labour) and OPSEU (Graham) (April 2, 1991), unreported (Kennedy), Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Anderson) (October 1, 1991), unreported (Watters), Re Brampton Hydro Electric Commission and C.A.W. - Canada et al. (October 28, 1993), 108 D.L.R. (4th) 168 (O'Dnscoll). These deCISIOns contemplate vanous prOVISIons of the Collectlve Agreement the entltlement of Schedule 6 employees to those benefits. I ~--.' "-,,- I ,.. ~, .' 7 EMPLOYER SUBMISSION Ms. Nixon, for the Employer asserted that tlus Board IS Without the JunsdtctIon to alter the gnevors' schedule Management's nghts flow m a resIdual fasmon from the CollectIve Agreement. If a matter IS not specIfically dealt WIth m the CollectIve Agreement or m ~ legIslatIon, the Issue IS left to management. In the mstant matter, there IS no proVISIOn m the CollectIve Agreement that specIfies how employees are to have therr Hours of Work Schedule determmed. That lack of express language allows the Employer the nght to estabhsh and mamtam the schedules. The Employer conceded that ArtIcle 7 6 clanfies some proVISI01).S, such as settIng the parameters for Schedule 6 It allows employees to transfer to another Hours of Work Schedule once the Issue has been discussed WIth them. There IS no proVISIOn statuig that management's al,locatIon of the Hours of Work Schedule IS subject to an employee's approval. Therefore, the Board should conclude that deCISIons regardmg schedule allocatIon are wIthm the unfettered nght of management. Ms Nixon asserted that the Umon's failure to pomt to a prOVISion m the CollectIve Agreement lnmtmg the Employer's dtscretIon m tlus regard IS most tellmg. The Board was not proVIded With any legIslanon proVIdmg the remedy urged by the Umon, Snnply put, tlus Board WIthout the Junsdtcnon to decIde the gnevances. / In ,the event that tlus Board IS persuaded to conSIder the farrness of the matter, Ms Nixon urged the Board find the Employer has acted reasonably The Umon has suggested that the gnevors have been dtsenntled to ove~e and hohday pay proVIsIons resultmg m an abuse . v { 8 of the schedule. The Umon suggested the eVIdence that DPT's who work m the same office and who penorm stmilar work are treated drlIerently that the gnevors. They receIve fewer benefits. However, Ms Nixon suggested the eVIdence was also uncontradIcted that sa's are compensated at a mgher base rate m the CollectIve Agreement. ThIs mgher level of / compensallon takes mto account those drfferences. A balance has been .struck by the partles. There IS no eVIdence that the Employer acted unreasonably or m bad f31th. The Employer contended that a findmg for the gnevors would consntute a rectIficatIon of \ the CollectIve Agreement, an exerCIse tfus Board cannot undertake However, m the alternatIve, m the event that It IS determmed that I have the JWlsdIc~on to deal WIth the matter, the facts as presented by the Umon does not support ItS allegatIons. FmaIly,- neIther of the remedies urged by the Umon are appropnate for thts Board to conSIder The Employer rehed upon Re The Crown in Right of Ontario (Ministry of Naturan '--- Resources) and Ontario Public Service Employees Union (Whitehead et al) (August 9, 1982) unreported (R. J Roberts), and Re The Crown in Right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union (Mellun) (October 17, 1988) unreported (Barrett) / DECISION After careful conSIderation of the SUblDlsslons of the partIes I am compelled to agree With the Employer that I am Without the JunsdIcnon to allow the gnevances The maJonty of the preVIOUS deCISIOns prOVIded by the Umon stand for the propOSItIon that Schedule 6 workers ! are to be scheduled to work on a dIfferent baSIS from most workers due to the nature of the ~ work wmch they are brred to proVlde As such, they are not entItled to all prelDlum pa.y prOVISIons of the CollectIve Agreement. I do not disagree With any of those awards. ., , \ '! 9 However; they are of VIrtually no assIstance to me m the mstant matter The Dmon argued that I should take gmdance from the Berry (supra) decIsIon. In that case, the Board detennmed that a group of Income Mamtenance Workers were unproperly classIfied but failed to order that they. be reclassIfied because there was lio other classIficatIon mto whIch they fit. The Board found that the gnevors were unproperly classIfied but specIfically refused to order a remedy In the DIVIsIonal Court decISIon '--- overtummg the Board's award It was made clear that the Board dId have the junsmctIon to order the Employer to create a classIficatIon for the gnevors. However, It IS to be '---- remembered that there are numerous prOVISIOns regardmg classIficatIon m ArtIcle 5 of the CollectIve Agreement. As well, the court took mto account SectIon 18(2) of the Crown Employees Collective Bargaining Act, R.S 0 1980 c 108, whIch proVided that: In addition to ~y other rights of grievance under a collective agreement, an employee claiming (a) that his position has been improperly classified, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination under section 19 There IS no correspondmg proVisIOn for the aSSIgnment of work schedules. Therefore the ; Berry deCISIon does not aSSIst m the detennmatIon of thIs matter However, m Whitehead (supra), the very Issue before me was conSIdered. In that deCISIon the Board was askeq to fmd, as a prelnnmary matter, whether It had the junsmctIon to hear and detenmne a gnevance regardmg the allocatIon of an hours of work schedule It was the pOSItIon of the Dmon that artIcle 77 (the present 76) was ambIguous and therefore "applIcatIon to vanous classes of employees was reViewable for confonmty to the past practIce of the Employer" Further, the Dmon argued that the Board had the junsmctIon to reVIew the "admnnstratIon" of the CollectIve Agreement mc1udmg ArtIcle 7 The Employer ~ i 10 argued, as It does now, that "because no express proVlSIon m the Collectlve Agreement or m any apphcable statute fettered the Employer m allocatmg classes of employees to vanous of these schedules, illcludmg Schedule 6, the Employer possessed complete mscretIon to make these detennmatIons as It saw fit and the Gnevance Settlement Board was WIthout JunsmctIOn to reVlew such deCISIons. The Board stated at page 6 We agree that this review amounted to a substantialshowmg that no provision of the Collective Agreement and no provision of the Crown Employees Collective Bargaining Act expressly gives an employee the right to grieve a decision by the Employer to allocate htin or his class to a particular hours-of-work schedule. The Board specIfically consIdered the prOViSIon now found at Artlcle 7 6 and stated at page 8 This provision appears to contemplate that there will be discussion between the Employer and the Union prior to a transfer from one schedule to another Implicit in this is the notion that the decision to transfer is within the exclusive right of management, the sole limitation thereupon begin the requirement for prior, discussion. Unless fettered by the Collective Agreement the Employer remains free unilaterally' to perform this allocation function. Article 7 6 has not been altered smce the deCISIOn m Whitehead. Therefore I am compelled to find that I am WIthout JunsmctIon to find for the gnevors. The U mon argued that I should find that the Employer has acted unreasonably ill the gnevors' scheduhng arrangements. It was urged that I should eIther order the gnevors to be re-classIfied or order the Employer to schedule appropnate hours of work ill accordance WIth \ Schedule 6 The only prOVISIon ill the CollectIve Agreement that I can find that prOVIdes for the scheduhng of hours of work for Schedule 6 employees IS Artlcle 7 3 winch sets out the normal hours of work ill a day and ill a week. There IS no mentIOn of the schedulmg of those hours bemg aSSIgned on a reasonable baSIS or on the baSIS of any other cntena. I I The Employer allowed the employees to detennme therr schedule of hours of work when It converted to the twenty-four hour per day coverage. The employees deCIded they wanted " ~, , ;t 11 to work the twelve hour shtft and adopted a schedule deVIsed by the Data Base TechmcIans The Dmon now clauns that because the schedule of the SOs IS VIrtually Identlcal to that of the TechmcIans, the Employer IS sch~du1mg unreasonably I cannot make such a fmdmg. The Dmon IS askIng to have It both ways. The workers were ,gIven the latltude to determme a schedule. I cannot now tell the Employer that because of the schedule It allowed the SOs to adopt, It acted unreasonably It was uncontradIcted eVIdence that thIs matt~r IS bemg addressed by the partIes at the bargammg table In my VIew, that IS the appropnate forum for the changes that the Dmon seeks. I cannot proVIde the rehef requested by the Dmon m the filmg of these gnevances ( 'J.1 ~ - Dated at Toronto, thIs 2?th day of March, 1996 I, ) I I I I I I I . 'I