Loading...
HomeMy WebLinkAbout1996-2075DESCHENES98_03_17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTAFlIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZS TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41~) 326-1396 GSB # 2075/96 OPSEU # 9610 18 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Deschenes) Grievor - and - The Crown In Right of Ontano (Mimstry of Finance) Employer BEFORE Owen V Gray Vice-ChaIr FOR THE N A. Luczay UNION Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE K.B CribbIe EMPLOYER Labour Relations Consultant Human Resources OperatIons - Oshawa Mimstry of Finance HEARING November 17, 1997 DECISION The grievance m tlns matter concerns the characteriZatIOn of the gnevor's absence from work in the penod April 9 to 12, 1996 The employer has charac- terized It as vacation time. The umon and the grIevor say it should be charac- tenzed as leave w~th pay, pursuant to an arrangement made between the union and the employer when bargaimng for the current collective agreement con- cluded at the end of March 1996 It IS common ground that the gnevor was in the Dommican Republic on the days in questIon. Collective bargalmng resulted in seven agreements in 1996 a central agreement and SIX unIt-specIfic agreements covering each of seven bargaming units The grievor was a member of the unIOn's bargaining team for the negotia- tion of the agreement covermg the admmistratIve bargalmng unit. When negotiations concluded at the end of March 1996 there was a dIS- cussion between Kevin Wilson and John O'Bnen. Kevin Wilson was then Coor- dmator of Union-Management RelatIOns for the employer John O'Bnen was chair of the union's bargaming team for the central agreement. Mr O'Brien re- quested of Mr Wilson that members of all of the union's bargalmng teams be gIven leave. He saId that as a result of the sIgmficant changes that had been agreed upon, the umon had issues that had to be explamed to the memberslnp He said that the bargaimng team members who were famIliar WIth the agree- ments needed time to explain them to the members. He asked that the members of the bargaIning teams be gIven leave for that purpose. Mr Wilson rephed that such leave would not be covered by the collectIve agreement. ArtIcle 28.2 1 then provIded for leave WIth pay for umon members whIle partlclpatmg m negotia- tions, but negotiatIOns had come to an end. Mr Wilson nevertheless agreed that - 2 - umon bargaining team members could take leave wIth pay In the perIod AprIl 1 to AprIl 12, 1996 for the purpose indICated, namely, to explain to unIon members the provisions of the agreements that had just been concluded. The foregoing IS the deSCrIptIOn Mr WIlson gave of thIS dIscussion and agreement In hIS testimony In this proceeding In cross-eXaminatIOn, the umon's representative suggested various things Mr O'BrIen might have said or meant. Mr Wilson was firm that the request was for tIme to explain the agreements to members during the period of the leave, not tIme to spend preparing to explain the agreements at some Indefinite future time. Although Mr O'BrIen was avaIl- able, the umon dId not call hIm to testIfy FollOWing the dIscussIOn WIth Mr O'BrIen, Mr WIlson asked a subordi- nate to Inform the relevant HR managers of the leave offered to members of the negotIating commIttees. HIS subordinate Inserted the agreed-upon dates In a standard form memo that had prevIOusly been used to Inform managers of meeting dates on whIch unIon bargaining team members were to have paId leave pursuant to ArtIcle 28 2 1 The header and first paragraph of the memo WIth re- spect to the adminIstratIve bargaImng team read as follows. April 3, 1996 MEMORANDUM TO' HR Directors FROM: Kevin Wilson Coordinator Union-Management Relations RE. UNION LEAVE FOR COLLECTIVE AGREEMENT NEGOTIATIONS The administrative bargaining unit and OPSEU have agreed to the following meeting dates: April,1996 1 to 12 inclusive Can you please ensure that the union bargaining team members are provided with the necessary time off as required by Article 28.2.1 of the collective agreement This leave is with pay and with no loss of credits. As well, the leave should include reasonable travel time Thereafter, the memo elaborated on "reasonable travel tIme," whIch was for travel "to and from negotIatIOns," hsted the members of the umon's adminIstra- tIve bargaImng team and continued referring to "meeting dates" and "bargaining - 3 - and caucus dates" Mr Wilson's subordmate sIgned the memo on his behalf. He acknowledged that the references to negotIatIons and meetmgs were mcorrect and dId not reflect the nature of the leave he had agreed to offer The grievor returned to work on April 1 He submitted a request for vaca- tion leave for the period April 15 to 19 On April 3 he revised his request to cover the period April 9 to 15 The revIsed request was approved. Up to thIS point, the grlevor was unaware of the discussIOn between Mr Wilson and Mr O'Brien. AprIl 4 was to be the grIevor's last day of work before rus vacation (April 5 and 8 were Good Friday and Easter Monday) That day he receIved a telephone call from Murray Baker, another member of the admInIstrative bargammg team. Mr Baker asked hIm what he was domg at work when they were supposed to be out workmg on implementatIOn of the contract. The grievor said he had heard notrung about that. Mr Baker explamed what he knew and said he would fax a copy ofMr Wilson's memo of AprIl 3 That fax arrived at about 230 p.m. Parm Young was then the Acting Commissioner in the Assessment Office where the gnevor worked. He was present when the grIevor receIved the fax. M. ter readmg it, the grlevor said to Mr Young that although he was supposed to be on vacatIOn leave the following week, the memo said he was on umon leave. He told Mr Young that he was gomg to go home and they would sort out the leave when he returned. There IS no suggestIon that Mr Young reacted in any par- ticular way to these assertIons. The gnevor then left work, went home and contacted Mr O'Brien by tele. phone. The grIevor mdICated awareness of Mr Wilson's memo, told Mr O'Brien that he had a vacation booked m the Dommican RepublIc for the remaimng leave penod, and saId he did not know what to do. He says Mr O'Brien told him that he was gomg to be reqUired to explam the contract to members at some future time, that rus aSSIgnment would be to go over the mam contract and the six umt contracts and that he could perform that aSSIgnment in the Domlmcan RepublIc. Accordmgly, he says, he took the central and umt agreements WIth hIm to the - 4 - Dom1OIcan Repubhc and reviewed them in hIS hotel room dur10g the penod 10 Issue When the grievor returned to work on Apnl 16, Mr Young told lum he had contacted Mr Wilson's assistant and been told that there had been a mis- take and the leave had been cancelled. The grievor nevertheless filled out to his log 10dIcate that he had been on negotlatlon leave in the period Apnl9 to 12, 10- clusive. In August he was told that his request for union leave under Article 28.2 1 for that period was being denied because dur10g that period no negotia- tions took place and he was away on vacation. The grievor responded by memo dated September 17, 1996, denY10g that he had requested such leave, and as- serting that he had "comphed with managements request to be avaIlable for as- SIgnments regardmg negotlatlOns as per Management Board Secretanat's re- quest of Apnl3, 1996 He added that "(t]he tlme 1Ovolved me do1Og aSSIgnments for OPSEU and my performance and whereabouts are of their concern only The M10istry does not control where I carry out my assignments for OPSEU " Dunng his exammatlOn m chIef the gnevor testIfied that his leaves for union purposes were often arranged or finalized after the event. He was asked what lus understandmg was about whether vacatlOns had to be taken on the dates approved. He answered that for the most part, the employee IS held to the dates. Later, WIth reference to leaves generally, he said that sometimes dates have been changed and sometImes not, but the employer was "mostly flexible." The days in question are days on which the gnevor was scheduled to take vacatIon. On lus own eVldence he could not have changed that urulaterally The employer's agreement was reqwred. There IS no suggestIOn that the employer agreed to the cancellation of the gnevor's scheduled vacatIOn at any time before or dunng the days in questIOn. For purposes of tills case, however, the employer does not argue that the fact that the grIevor had been granted vacation leave for the days in questlOn IS dIspOSItIve, It does not rely on its havmg an unfettered dIscretIOn whether to ret- - 5 - roactively alter vacation leave to some other form of leave. Employer counsel suggested that the outcome of thIS grIevance should turn on whether what the grievor dId on the days m question fell wlthm the scope of Mr Wilson's agree- ment with Mr O'BrIen to offer leaves to members of the bargaimng teams. That would be a reasonable basis for the employer's exercise of Its discretion. Accord- mgly, I do not have to decide whether the dIscretion is subject, as the union claims, to an implied reqUIrement that it be exercised reasonably The focus of the partIes' argument was on the nature of the agreement Mr Wilson made WIth Mr O'BrIen to offer leaves to members of the bargammg teams, and on whether the grIevor's actiVIties in the Dominican Republic fell within the scope of that agreement. The umon argued that the agreement between Mr Wilson and Mr O'BrIen was only that leave would be granted for purposes of actiVItIes related to Implementation of the collective agreement, and that, accordmgly, it was up to the union to determme what would be done by those granted leave. Meeting with employees required preparation, it submitted, and preparIng to meet with em- ployees was WIthin the scope of the leave granted. The umon's representative noted Mr Wilson's testimony that he dId not know, and had not mqulred about, what had been done by other members of the umon negotiatmg teams who were granted leaves. The employer argued that leave was offered to umon members already famIliar with the agreements as a result of their participatIOn in the negotiation of them, so that they could go out and explam the agreements to others. The un- IOn dId not ask for time for them to prepare, and leave was not granted for that purpose. The grievor was not m a position to and dId not explam the agreement to others durmg the days in question, as he was m the Domlmcan Repubhc. Ac- cordingly, lus actiVIties were outSIde the scope of the leave offer Mr Wilson's testimony was clear Mr O'BrIen's request for time off with pay for the umoIi's bargammg team members was bound up WIth lus accompa- nymg statement that they needed time to explam the agreements to the mem- - 6 - bershlp Mr WIlson saId he granted the leaves for that purpose, not for the pur- pose of theIr studying the agreements they had Just finished negotiatmg Mr Wilson's testimony was not contradIcted. Mr O'Brien was not called to testify I Infer that he could not have gIven testimony that would, on balance, have ad- vanced the case put before me by the UnIon on the grievor's behalf. Mr Wilson did testify in cross-examination that he dId not know whether those who took the offered leaves used the time off to inform other UnIon mem- bers about the agreements. That does not detract from his testimony about the limIted purpose for which the leaves were offered. The fact that he dId not per- sonally and actively pohce the hmlts on the use of the leave is not mconslstent with there haVing been such limIts. There IS no evidence that there was some other leave claimant who the employer knew could not have been meetmg with members during the relevant period. When I ruled against receiving the grievor's hearsay testimony about what he had been told that other bargaInIng team members had done whIle on leave, the union's representative stated that Mr O'Brien would gIve evidence on that Issue. In the end, however, the union did not call Mr O'BrIen. There was no eVidence that the employer's treatment of the grlevor's actiVities was inconsIs- tent WIth its treatment of any other leave claImant. The assignment that the grIevor says Mr O'Brien gave hIm for the perIOd April 9 to 12, 1996 was not an assignment of the sort for which Mr Wilson had agreed to grant leave WIth pay Accordingly, the employer's refusal to treat the grIevor as having been on leave of the sort Mr Wilson had agreed to grant was not a breach of that agreement or of the collective agreement. This grievance IS therefore dIsmIssed. t.7~ onto thIs )6th day of March, 1998 I