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HomeMy WebLinkAbout1996-0590CUSHING96_11_05 OfI/TARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSfMfLE/TELECOPfE (416) 326-1396 GSB # 590/96, 643/96 OPSEU # 96E550, 96B716 IN THE XATTER OF AN ARBITBATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cushing) Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE L Mikus Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Services Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING October 28, 1996 Between February 26 and March 29, 1996, the members of the Ontano PublIc Service Uruon were engaged in a legal strike agaInst the Government of Otttano The strike concluded wIth a memorandum of settlement which contained a Return to Work Protocol (Hereinafter referred to as "Protocol"). That Protocol allowed that any issue arising out of its enforcement could be resolved under the grievance and arbItratIOn procedure of the collective agreement. This gnevance arIses under article 10 01 of the Protocol whIch reads as follows. 10.0 No Repnsals 101 Both partles agree that there will be no repnsals, discrimination or retalIatIon for any act or inaction taken by any employee of the employer ansmg out of partlclpatIon in the strike. In addition, both partles agree that no employee shall initIate or participate in any reprisal, discrimInation or retaliation for any act or maction taken by a manager or excluded employee during the strike. Mr Rtchard CushIng has been employed as a Health and Safety Inspector WIth the Ministry of Labour for 10 years He transferred to the Scarborough office in 1991, was seconded to the Human Rights COmmIssion for a year as a SpeCIal InvestIgator, and returned to the Scarborough office in January of 1993 Upon his return he was invIted to particIpate in a Compressed Work Week Agreement (Hereinafter referred to as "CWW A") That CWW A proVIded for seven eIght hour days and two eight and one quarter hour days over a two weeks, aIlowmg for five days off ill two weeks. The grievor testified that he preferred this schedule over the previous schedule because It allowed hIm to attend to personal matters during the week and generally provIded for a better qualIty of lIfe The strike ended on March 29, 1996 and, upon hIs amval at work on April 1, 1996, he was adVIsed by hIs supeTVlsor that the Employer Illtended to cancel the CWW A at the Scarborough office. He was surpnsed because as far as he knew there had been no complamts about the 1 -- 2 compressed work week. He dId recall a dIScussIon with Mr McGowan III 1994 at which tlme he was told the office was havIng trouble covenng chent complaints on Mondays and Fndays, the most popular days off in the compressed work week. The employees Illvolved dIscussed the problem and decIded that no more than one quarter of the employees could be off duty on any given day Mr Cushing testIfied that Mr McGowan was pleased not only WIth the solution but also with the way the problem was handled by the group Other than that one Incident, the grievor was never adVIsed by eIther the Employer or other employees that there were problems with the schedule. Throughout that period the grievor was a Union steward, Union Treasurer and Union Secretary and, as such, would have been advised of any complaInts by either party On April 17, 1996, a memorandum was sent to all partICIpants of the CWW A adVIsing as follows Please be advised that effecuve 5.00 p.m., Friday May 3 1996 all Compressed Work Week Agreements for all staff m the Toronto Area Office will be cancelled. TIns letter serves as two weeks notice as reqmred by existmg Compressed Work Week Agreements. I hope that you understand that in lIght of the fact that we will by trymg to meet the clIent servIce and busmess needs of the organisation with a reduced number of staff, and in fairness to the staff who will be receiving surplus nouces m the near future, we are no longer able to accommodate compressed work weeks. YotrrS Truly, Lynn Bmette Director, Toronto Area The gnevor did not accept the reasons for the cancellatIon of the compressed work week. There had been no staff cuts III the Inspector classificatIOn and, further, the Mimster of Labour had specifically proffilsed that there would be no reductIon III the current number of Health and Safety Inspectors. As far as he was aware, there were no problems WIth the delivery of servIce to the chents. It was ills behefthat the memorandum was Intended to be a repnsal for the strike and he 3 filed the instant gnevance. In It he asks for an order from the Board dIrectIllg the Employer to Immediately reIllstate rus CWW A. Ms. Binette testIfied for the Employer She has been employed by the Government for 24 years and by the Ministry of Labour since 1991 At the relevant tlme she was the Director of the Toronto Area. She was responsible for 190 staff, including the staff employed at the Scarborough office. She now supervIses 1376 posItlons III the three areas that make up the Toronto Area, namely, Toronto Central, Scarborough and Rexdale. The CWW A's came into effect before her arrival. In 1990, the then Deputy Miruster of Labour, Mr George Thomson, was concerned about staff morale generally and discontent wIth the Ministry of Labour specifically He had a survey conducted and from that survey he initIated a restructunng of the operatIOnal arm of the Ministry, which Illcluded Ms. Binette's area. At that tIme CWW A's were established on the theory that happy staff will be more productIve. The CWW A's were agreed to on a local level between managers and employees at each workplace. The first one was effected III 1992 and several more followed III the subsequent months. The agreement III the Scarborough office Illcluded the clencal staff, the constructIOn mspectors and the industnal inspectors. Almost immediately the Mirustry began expenencmg dIfficultIes with the new schedule. For example, they had problems finding someone from the clencal staff to prOVide back-up to the receptlorust for the extended tlme of the sluft. They also had problems WIth some Illspectors who dId not work the full shtft, partIcularly after four 0' clock 4 III the afternoons Most problematIc was the difficulty finding Illspectors to cover Mondays and Fridays. At the time, because of the hinng freeze, there were several vacancies that the mIllIstry could not fill, which compounded the problem. They began receIVIllg complaIllts from the publIc that inspectors were not making sufficIent rounds of the workplaces. She was aware of rum ours to the effect that clients dId not have to worry about any surpnse IllspectIOns on Mondays or Fridays. In June of 1995, immediately after the electIOn, there was a dIrection to downsIze all departments of the Government, including the Health and Safety department of the Mimstry of Labour The overall commitment of the Government was to cut 13,000 civil servant jobs and the Ministry III particular was expected to cut from 40% to 60% of Its budget. They were to have theIr draft budgets available by the end of August for review In October of 1995, after conSIdering the history of problems WIth the CWW A's and the antIcipated cut-backs it was decided not to renew any CWW A's as they expIred, not to enter into any new CWW A's and to cancel all outstanding CWW A's. The Government Illtended to announce ItS plan for downsIzIllg in November of 1995 and Ms. BIllette's department deCIded to announce theIr plans concermng the CWW A's at the same tlme It was hoped that the employees would apprecIate the necessIty for the cancellatIOn of the CWW A's when they saw the extent of the downSIzing. However, the Government's announcement was not Issued III November, as expected. It was antIcIpated In January of 1996 but, when the negotiatIons for the new collectlve agreement began, It was deCIded to Wait until after the conclusIOn of those negotiatIOns. In fact, 5 the Government did not formally announce Its plan for dOwnSIZIllg until May 23, 1996 With respect to the memo of April 17, 1996, Ms. Binette testlfied that It was delayed, III part, for personal reasons. She was off work all of January and February because of illness. She returned to work Just before the strike but had to take another two weeks off III March. The managers wanted to wait until her return to announce their intentions regarding the CWWA's and any surplus issues. She attended an Division Executive meeting at the end of March where the surplus lists were finalized. The plan called for meetings on April 15 and 16, 1996 with the managers to tram them on how to deliver surplus notices which were to be issued April 17, 1996 As well, they confirmed their proposal to cancel all CWW A's and planned to serve notice of that cancellation on the same day as the Ministry announcement regardIllg surplus notIces. At the Scarborough office the surplus notIces did not affect the Inspectors dIrectly but dId Illvolve the clerical staff. Ms. Binette wanted them to be free to focus on finding alternatIve employment, inSIde or outsIde the CIvil servIce, and felt that the COmmItment to work the CWW A's would Illterfere WIth theIr job searches. For that reason It was decIded to Issue the memo of April 17, 1996 as planned even though the announcement of surplus notices was delayed. She maIlltaIlled that the deCISIon to cancel the CWW A's had nothing to do WIth the strike and she suggested It was poor judgment on the part of the manger who told the employees of their plans on the first day they returned to work followIllg the strike. She denIed the suggestIon that the cancellatlOn of the CWW A's was a repnsal for the strike She 6 described the picket line at the Scarborough office as aIlllcable. Both the Union and the management worked hard to ensure that there were no incidents on the line and had what she described as a healthy approach to the opposing views. They recognized that the Issues causIllg the strike were not local and operated on a level of mutual respect. Dunng the strike, the Uruon members were allowed to use the office washroom and provIded WIth coffee and donuts by the management. In particular, she had no specIfic dealings with the grievor and suggested that there would have been no reasons to retaliate for the Union's actions since nine of the eleven inspectors, Illcluding the grievor, crossed the picket IIlle before the strike was over In cross-exanunation she conceded that the complement of Inspectors Illlght have remamed constant m the Scarborough office but stated that she was responsible for three areas and III those three areas there were fourteen vacancies ill that classification. The deCISIon to cancel the CWW A's applied to all three regIOns and was based on concerns about those staff who would be receIving surplus notIces and about servIcing client needs WIth reduced staff. ARGUMENT Mr Leeb, for the Uruon, took the positIOn that the facts supported the Uruon's allegatlons. First, he asked the Board to consider the tlIlllng of the notice to cancel the CWW A's. On the first OffiCIal day back to work followmg the strike, the employees were adVIsed that somethIllg they conSIder to be a benefit was to be cancelled. Second, the reasons for the cancellatIOn of the CWW A's were clearly not apphcable to the Scarborough office The number of Illspectors had remaIlled constant and the Government had stated pubhcly that there were to be no layoffs of 7 Inspectors. Mr Leeb contended that the Ministry's suggestIon that there were longstandmg problems with the CWW A's IS on dIrect conflict wIth the gnevor's eVIdence that the Umon was never advised of those problems except for the once mstance concernmg Mondays and Fndays. That problem was satisfactorily resolved by the inspectors themselves. Any eVIdence concernmg problems with the CWWA's should be given no weIght by this Board. In the same manner, the suggestion that the decIsIon to advise the employees on the first official day back to work was simply a SIgn of poor judgment should be rejected by this Board. Mr Leeb contended that one of, if not the, most dIfficult work enVIronments IS a return to work after a strike. It was a very emotIonal tlme for everyone. In reachIllg a settlement, the partIes were careful to take steps to get things back to normal with as little upset as possible He asserted that a comment such as the one at issue in this grievance could only exacerbate the sItuation. The essence of the Return to Work Protocol was to attempt to re-establIsh, as qUIckly as possible, the work enVIronment that prevailed before the strike. It was lus pOSItIon that the tImIllg of the comment concerning the cancellation of the CWW A's was mtended to undenrune those efforts. Finally, argued the Uruon, the tnrung of the notice, that IS April 17, 1996, was never explaIlled by the Employer If the plan was to issue that notIce sImultaneously WIth the Government's surplus announcements, there has been no explanatIon for why It was released five weeks earlIer In the absence of a plausible reason for the tlmmg of the notIce, tlus Board should come to the conclusIOn that ItS purpose was to undenmne the Umon and the grievor because of the strike. 8 Mr Garvy, for the Mirustry, took the position that the essence of the gnevance is that the Employer's actIOns were a repnsal for the strike. There is sImply no eVIdence before thts Board that the Employer's actions were taken as a result of the strike. The Uruon has alleged the Employer acted III bad faith but has failed to satisfy that onus. Indeed, argued the Employer, the evidence IS clear that the deCision to cancel the CWW A's was made well before the strike began. It was made as a result of the Government's announcement that it mtended to reduce the civil servIce by 13,000 jobs. The reasons for the cancellatIon of the CWW A's was a legitimate busIlless concern about meeting the client's need with a reduced staff complement. The Employer argued that this gnevance is the mdivldual gnevance ofMr Cushmg. He has alleged he has suffered because of what he terms retahatIon for the strike However, the evidence IS clear that the deCIsion was made on a regIOnal baSIS and was not alffied at the gnevor specifically Not only did the Employer have no reason during the strike to retaliate against the grievor, but, to the contrary, the evidence IS that while he was on strike there were no Illcldents involvIllg Ium or anyone else on the picket lme Further, he came back to work dunng the strike. It took the posItion that there IS simply no eVIdence to support the gnevor's subjective VIew that the Employer cancelled Ius CW AA as a repnsal for the strike The Employer contended that this Board's JurisdIctIOn was hrruted to deterrrurung whether the deCISIOn to cancel the gnevor's CWW A was a repnsal for the fact that he was Illvolved III a strike. 9 It does not have the jUrIsdiction to rule on the ments of the Employer's decIsion. There IS no obligatIOn on the Employer to enter into a CWW A. SImilarly, there is no obligatIOn for the Employer to provide reasons for Its decisIon to cancel those CWW A' s. The indiVIdual agreements regarding CWW A's simply reqUIre two weeks notlce of their cancellation. On the eVIdence before it, this Board should disffilss the gnevance. In support of ItS pOSItIon, the Employer relied on the folloWIllg cases. Smythe and Ministry of Solicitor General and Correctional Services(1996), GSB # 354/96 (Bnggs); James Glenny and Ministry of Government Services (1983), GSB # 317/83 (Roberts), Andre Ropars and Ministry of Government Services (1985), GSB # 400/84 (B.B Jolliffe) and OPSEU and Ministry of Finance (1996), GSB # 596/96 (DIssanayake) DECISION Tills gnevance alleges that the Employer retahated agaInst the gnevor after the strike by cancelling the CWW A at the Scarborough office. My JunsdictIon is hffilted a finding on those narrow grounds It IS not for me to determme whether the reasons for the cancellatIOn were vahd and/or related to genUIne busIlless Interests. NeIther am I asked to determIlle whether the deCISIon was Intended as a reprisal to all of the bargaIllIllg urut members whose CWW A's were cancelled. DECISION The eVIdence IndIcates that the deCiSIon to cancel the CWW A's was taken In October of 1995, 10 some four months before the strike Indeed, It was made before the negotIatIOns between the Urnon and the Government reached the pOInt where a strike was anticIpated. The decIsIon was made by the Area DIrector, III consultation wIth other executIve members and managers. It was not almed specIfically at the gnevor but was Illtended to apply to all employees III all three offices covered by CWWA's. While I appreciate that the timing of the notIce was unfortunate, I am not persuaded it was communicated to the grievor at that time as a reprisal for the strike generally or rus actions dunng the strike specIfically It showed a senous lack of Judgment on the part of the supefVlsor who announced that the CWWA's were to be cancelled on the first OffiCIal day of work after the strike. It IS not surprising in the CIrcumstances that the gnevor took that announcement to be an mtentIOnal act of reprisal, especially consIdenng rus preference for the extended hours of work schedule. Nevertheless, the deCIsion was not made by rus supefVlsor but by the Area DIrector and her uncontradicted evidence was that the deCIsion was based on what she considered to be legitimate concerns about the delivery of servIce to her clients, especially III light of antIcipated cut-backs. I accept her evidence that she had no ultenor motIve to cancel the CWW A's generally and no cause to cancel the gnevor's specIfically There are two branches to sectIon 10 1 of the Protocol. The first branch guarantees there will be no reprisals, discnmIllatlon or retaliatIon agaInst any employee by an employer for any act or inactIOn dunng the strike, the second that no employee will engage In any repnsals, dlscnnunatIon or retalIatIon for any act or IllactIOn by non-bargaIrnng urnt employees. In trus case, the gnevor IS 11 allegmg a breach of the first branch of sectlOn 10 1 However, there IS sImply no eVIdence before me of any act or inaction on the part of the gnevor dunng the strike that would warrant any reprisal or retaliatlon. While he was on strike, the uncontradicted evidence IS that there were no incidents involving the grievor that mIght have motivated the Employer to retaliate. On the basis of the eVIdence before me, I am not persuaded that the decIsIon to cancel the gnevor's CWW A was Illtended as a retalIatory measure because of his participatIon m the strike. For the reasons set out above, the gnevance is disrmssed. SIgned this 5th day of November, 1996 at Toronto /) , I J-U$~ /lu/tr~ - Loretta Mikus, Vice-ChaIr