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HomeMy WebLinkAbout1995-1855.Union.98-02-17 ONrARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARKJ 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUlTE600, TORONTOONM5G 1Z8 TELEPHONEITELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (418) 328-1398 GSB #1855/95 OPSEU #95Ul16 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown In RIght of Ontano (Ministry of the SoliCItor General and Correctional ServIces) Employer BEFORE o Gray Vice-ChaIr FOR THE A. Ryder UNION Counsel Ryder Wnght BlaIr & Doyle FOR THE G Basanta EMPLOYER StaffRelattons Officer Mimstry of the Solicitor General and CorrectIOnal Services HEARING October 27, 1997 -- DECISION This arbItration concerns a grievance filed by the union in wntmg m Sep- tember 1995 Under the heading "Statement of Grievance" on the umon's stan- dard grIevance form, the umon wrote The Employer at Vamer Centre for Women IS rn violatIOn of the Compressed Work Week Agreement wIth regards to meal and rehef breaks. Below that, under the headmg "Settlement Desired," the umon wrote The Employer cease and desIst thIS vIolation and mea 1 and rehef breaks be afforded to all affected employees rn accordance wIth the C W W Agreement. The Issue that the parties have asked me to address in this decIsIon IS whether, havmg regard to the wordmg of the grIevance and other CIrcumstances, the un- ion can pursue m these proceedmgs a claIm for compensation for any mdIvIdual employees at the Vamer Centre for Women who It can show were adversely af- fected by alleged breaches of the Compressed Work Week Agreement. The relevant prOVIsions of the Compressed Work Week Agreement are these 2.3 1 Each twelve (12) hour shift will contarn one thIrty (30) mrnute paid meal break. It IS recognIzed that these breaks may be suspended If operational needs dIctate. 2.3 4 The paId breaks and rest periods rn accordance with artIcle 2 of this agreement, will be dIstributed eqUItably between the start and end of each shIft as per past practice. The Umon claIms that the Employer breached these provisIOns m the pe- rIod between September 1993 and December 1996 - 2 In September 1993, management made a change m the way mmates at the subject facilIty are fed. Prior to September 1993, mmates ate theIr meals at the five cottages where they resided. In and after September 1993, mmates ate theIr noon and evening meals at a central dmmg hall. The umon says that thIS and other contemporaneous changes mcreased the duties of correctional officers durmg those meal periods, makmg It more dIfficult for each officer to get a full thirty minute respons~b~ltty-free period m wluch to eat his or her meal. The un- ion says that thIS resulted In many officers getting meal breaks of less than the full 30 respons~bd~ty.{ree minutes to whIch they were entitled. The "responsibIl- Ity-free" qualIfication is sIgmficant. The union says that allowing an officer to eat WIth the inmates while he or she remams oblIged to supervIse them does not amount to giving the officer the "paid meal break" contemplated by artIcle 2 3 1 of the Compressed Work Week Agreement. In December 1996 the employer introduced what union counsel described as a "formalIzed meal break policy" This had the effect, In the union's VIew, of brIngmg the employer's continuing breaches to an end. The employer's positIon was and is that whIle the change in mmate eatmg arrangements m September 1993 changed the officers' duties It dId not Increase them. It says that the officers had the same opportunities for meal breaks in and after September 1993 that they had had before then. Moreover, and in any event, It says that the meal break prOVIsIOns of the Compressed Work Week Agreement dId not reqUIre that those meal breaks be responsibIlIty-free, and that officers' opportumtIes for meal breaks m the period September 1993 to December 1996 were breaks of the sort contemplated by the agreement. The employer also says that the polIcy introduced m December 1996 merely formahzed the process that eXIsted at that time Starting m late August 1995, officers began filIng indIvidual grievances about the meal break SItuation. Each grievance alleged that the employer was vIOlatmg the collectIve agreement and the Employment Standards Act WIth re- spect to "rest/meal breaks." Each claimed "full redress" under the headmg "Set- 3 tlement DesIred" on the umon's standard grIevance form. SIX such grIevances were filed before the umon filed the pohcy grievance now before me. The umon says Its grIevance was an attempt to consohdate the claIms of affected employ- ees, so that multiple grIevance hearings could be avoided. None of the other em- ployees affected by thIS Issue filed a grIevance about It after the union filed tlus grIevance. The umon asserts, WIthout contradIctIOn, that none of the prior indi- VIdual grIevances has been scheduled for hear10g by the Board. Loretta Eley was the Super10tendent at the subJect 1OstItutIOn 10 the pe- rIOd January 1995 to October 1996 She testified that it was imtially her as- sumptIOn that this policy grievance covered the 10dlvidual grIevances, and that when pohcy grIevances are filed It generally happened that way In October 1995 Ms. Eley attended the stage 2 grIevance meet10g WIth re- spect to thIS grIevance as an advisor to the Deputy Mimster's designate. She tes- tified that the local umon representatives 10 attendance at the meeting dId not say anytlung about claIming compensation. She added that as a result of previ- ous experiences with the expenSIve outcome of another grievance at another in- stitutIOn, she was "keenly aware of what the union was askmg" and wanted to be sure to "aVOId" the compensatIOn Issue. Durmg cross-exam1Oation she acknowl- edged understandmg that 10 October 1995 the umon would have been content WIth an immedl,ate "restoratIOn of meal breaks", and that there had been no dis- CUSSIon at that time of what would happen If that dId not take place. Ms Eley testIfied that the only subsequent discussion of the umon's policy gnevance of whIch she was aware occurred 10 November 1995, dur10g a second stage meet10g concermng a grIevance of Momca Welch, one of the SIX mdlvIdual grIevances that had been filed concern1Og meal arrangements. Dur10g that meeting she raIsed the fact that there was a pohcy grIevance on this Issue The \ local umon representative's response was that that 10dlvIdual gnevance was go1Og ahead She took thIS to mean that whIle it was generally the case that a pohcy grIevance~~ covered 10dIvldual ones on the same Issue, that was not the case here. She saId there was no other dISCUSSIon of the pohcy grIevance and, 10 -4 partIcular, no suggestIOn that compensatIOn would be sought m connectIOn wIth the pohcy gnevance In cross-exammatIOn she acknowledged knowmg that m Its relatIOnshIp wIth Its members, the UnIon consIders ItS members to have "car- nage nghts" wIth respect to theIr own grIevances She resIsted the suggestIOn that the local UnIon representative's comment m thIS meetmg sprang from that consideration. Argument When thIS grIevance first came on for hearmg m May 1997, UnIon counsel saId that the UnIon was seekmg compensatIOn for officers affected by alleged breaches of the meal break provIsion of the Compressed Work Week Agreement durmg the perIod September 1993 to December 1996, mcluslve. That was clearly the first time that such a claIm had been expressly asserted. The UnIon's argument is essentially that the claIm for compensation was ~mphcLt m a gnevance complaming of failure to provide paId meal breaks, and that If a formal "amendment" of the "Settlement DesIred" portIOn of ItS wntten gnevance IS necessary It ought to be granted. In support of those pOSItions It CItes Be Yardley of London (Canada) Ltd. and lnternatwnal Chem~cal Workers' Umon, Local 351 (1973), 4 L.A.C (2d) 75 (R. D Brown), Be Miss~ssauga Hydro- Electnc Comml,sswn and lnternatwnal Brotherhood of Electncal Workers, Local 638 (1992), 28 L.A.C (4th) 177 (Sprmgate) and Be Labatt's Alberta Brewery and Brewery, Beverage & Soft Drmk Workers, Local 250 (1996), 53 L.A.C (4th) 158 (Melnyk) The thrust of the employer's argument IS that "addmg" or "changmg" the rehef sought to mclude compensation when the grIevance document ongmally asked only for a "cease and desist" changes the gnevance mto "something else." \ The employer's representative observes that the UnIon could have expressly claImed compensatIOn m the ongmal grIevance document or at the second stage meetmg, but It dId not. It dId not do so at any time between then and the end of the perIOd for whIch It now claIms the compensatIOn. WhIle she acknowledges 5 - that there IS no dIrect eVIdence that the employer would have acted dIfferently had It been put on notice of the umon's claIm earlIer, the employer's representa tIve asks me to mfer thIs from Ms. Eley's eVIdence about the concern she had arIsing out of the earlIer grIevance at another mstItutlOn. She asserts it would be unfaIr to permit an amendment to make the claIm now Decision The Issue to be determmed at thIS pomt IS not whether the umon can prove that the employer breached ItS obhgatlOns WIth respect to paId meal breaks m the time perIod m Issue, nor whether (apart from the delay m ex- pressly assertmg a claIm for It) compensatlOn would be approprIate as part of a remedy If the umon does prove the alleged breaches Another very real Issue not before me for determinatlOn at thIS pomt IS the effect of the grIevance prOVlSlOns of the collective agreement on the perIOd m respect of wluch damages could be awarded, havmg regard to the time when the grIevance was filed, even If a claIm for damages had been expressly mcluded m the grIevance document. The sole Issue at thIS pomt IS whether umon's faIlure to expressly assert a claIm for dam- ages prlOr to the hearmg precludes It from recovermg any damages that mIght otherwIse have been recoverable. As arbItrator Sprmgate observed m Re Miss~ssauga Hydro-Electnc Com m~sswn and lnternatwnal Brotherhood of Electncal Workers, Local 638 (1992), 28 L.A.C (4th) 177 at page 182 At one time It was common for arbItrators to grant only declaratory relIef m response to a successful polIcy grievance. Particularly smce the Ontano Court of Appears Judgment ill Re Blomn Drywall Contractors Ltd. and Umted Brotherhood of Carpenters & Jomers, Loc. 2486 (1975), 57 D.L.R. (3d) 199, 8 0 R. (2d) 103, 9 L.AC (2d) 26n [leave to appeal to S.C C. refused November 17, 1975], however, thIS IS no longer the case. Currently the general approach IS to hold that unless there is express language in the collectIve agreement whIch restrIcts the scope of remedial relIef available ill response to a pohcy grIevance, the full range of possible remedIes is available to make both the umon and ItS affected members whole should the grIevance succeed see Re St. Joseph's Hospaal, London and o.N.A. (1989) 8 L.AC (4th) 144 (Burkett) 6 - That and the other awards cIted by the umon m Its argument here are among those cIted in Brown and Beatty, Canad~an Labour Arbaratwn (3rd ed., Canada Law Book) at ~2 1400 for the proposItIOn that [FJollowing the reasonmg in Polymer, arbItrators have generally refused to conclude that theIr power to grant a remedy is precluded by the absence of a specific remedial request m a grIevance or submISSIon to arbItratIOn. That was the arbItral jurIsprudence when the parties negotiated the ap- plicable collective agreement. Nothmg m that collective agreement altered the applIcatIOn of the prmcIples set out m that Jurisprudence ArtIcle 27 of the collec- tive agreement in force m September 1995 reqUIred that a "grIevance" be re- duced to wrItmg and processed through certam steps before It could be referred to arbItratIOn. The agreement dId not expressly define the word "grievance." From the context m whIch It IS used, however, "gnevance" clearly meant and means a "complamt" or "dIfference" between the parties "ansing from the inter- pretation, applIcatIOn, administratIOn, or alleged contraventIOn of this Agree- ment, mcludmg any questIOn as to whether a matter is arbItrable" (see sectIOns 27 1, 27.2 1, 27.2.2, 273 1, 273.2 and 27 12 1) Nothmg m the collective agree- ment expressly or Imphedly reqUIred that the WrItten grIevance do more than identify the "complamt" or "dIfference" Nothmg m it required that the Written grIevance be m or on a partIcular form. Nothmg m it required that the grievor or the umon Identify m the WrItten grIevance the remedy or remedIes It would be askmg for at arbItratIOn If attempts at settlement through the grievance process were unsuccessful. As the arbItral JUrIsprudence indicates, the nature of the remedy sought IS not part of what must be WrItten down WIth a deSCrIptIOn of the conduct complamed of m order to satisfy a reqUIrement that a "grIevance" be re- d uced to wrItmg It follows that If the umon's WrItten grIevance had SImply described the conduct complamed of, WIthout more, the document's SIlence about the remedy sought would not have precluded the umon from pursumg at arbItratIOn what- ever remedy mIght then seem approprIate. Assummg that compensatIOn for af- fected employees IS an otherwIse approprIate remedy, IS the umon precluded ~ - - 7 from seekmg It because It dId wrIte something under the words "Settlement De- sIred" on Its grIevance form, but dId not mclude a reference to compensatIOn? The employer's WItness dId not claIm to have thought that what the umon wrote under the heading "Settlement DesIred" was an undertaking or represen- tation that the umon would not claIm such further and other remedIes as mIght then seem approprIate If the matter was not promptly resolved in the grievance process. Statements by umon representatives at the grievance meetmg about thIS grievance were focused on what the umon would settle for then, not on what ItS legal claIm would be at arbItratIOn If the employer continued the conduct to WhICh the umon objected. Statements by umon representatives at the subse- quent grIevance meetmg concermng the Welch grIevance might perhaps be taken as a representation that a claIm for compensation for that employee would be pursued In that grievance rather than In thIS one Those statements cannot be taken, however, as a representation that the union would not pursue remedies for other employees in connection wIth thIS grIevance. Even If the umon had represented that would not pursue remedIes that would otherwIse have been open to It to pursue, the union would not be con- strained by the representatIOn unless the CIrcumstances gave rIse to an estoppel. The employer's WItness - the institutIOn's supermtendent at the time - dId not testify that any commumcatIOn from the umon concerning thIS grIevance had led the employer to do or refrain from domg something that wIll have been to Its det- rIment If a compensatIOn claIm IS entertamed. There was no suggestIOn, for ex- ample, that the polIcy Implemented m December 1996 would have been ImplI- mented earlier had the employer been expressly notified that compensation would be sought for more than SIX of the employees allegedly affected. Nor was It suggested that documents that would otherwIse have been retamed as relevant to the assessment of claIms for compensatIOn were destroyed m the expectation that no claim for compensatIOn would be made. I am not prepared to Infer that there was any such detrImental relIance 8 - Accordmgly, I am not persuaded that the umon IS precluded from pursu- mg m the arbItratIOn of this gnevance a claIm for compensatIOn for employees other than Momca Welch. The partIes dId not specIfically address the questIOn whether the UnIon should be precluded from pursumg a claIm for compensation for her If It was found entitled to pursue one for other employees I leave It to them to see If they can agree on whether the claim for compensatIOn for her IS to addressed m another proceedmg or m this one. I remam seIsed WIth that ques. tIOn If they are unable to agree I WIsh to reIterate and emphasIze that thIS is not a deCISIOn about whether the Compressed Work Week Agreement obhged the employer to gIve employees a meal break that was responsibIhty-free, nor about the likehhood that the UnIon can prove that the employer breached that agreement, nor about whether the employer will be hable for compensatIOn If It dId breach that agree- ment, nor about the hkehhood that the umon can estabhsh a baSIS for an award of any substantIal amount of compensatIOn. The partIes and the affected employees would be well advised to consider carefully whether the amounts reahstIcally In Issue m the compensatIOn claIms warrant the conSIderable expendIture of time and money that it appears wIll be necessary both to pursue the compensation claIms and to reSIst them. If the par- ties are not now able to settle the matter on terms more attractive to them both than the prospect of contmued htIgation of these Issues, I will hear the partIes' submIssIOns concernIng the course the hearmg should now take, mcludmg the matters on whIch wntten particulars should be prepared and prOVIded prIOr to any hearmg on the ments. ThIS matter may be scheduled for further hearmg at the request of eIther party ~ l'U, Toronto thIS 1}lfh day of February, 1998