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HomeMy WebLinkAbout2001-1239.Derry.05-01-20 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-1239 UNION# 2001-0603-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Derry ) Union - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION Mark Barclay Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING January 11 2005 2 DeCISIon The gnevor IS a Resource TechmcIan 2 ("RT2") In a posItIOn commonly referred to as a "crew boss" He IS a seasonal employee who from roughly May to August of each season SInce 1998 has worked as a member (imtIally as an RPl "crew member" and SInce 2001 as an RP2 "crew boss") of one of a number of fire crews based at the Ranger Lake ImtIal Attack FIre Base located approxImately an hour and half north of Sault Ste Mane In thIS gnevance he claims that an assIgnment whIch consIsted of travel outsIde of hIS sector (to WashIngton State) was Improperly gIven to a Jumor employee The partIes agree that had It been made on the basIs of semonty standIng at the tIme, the assIgnment would have gone to the gnevor The partIes also agree that had the assIgnment been made to the gnevor he would have earned an addItIOnal 72 hours of pay at overtIme rates (I was not proVIded wIth the preCIse computatIOn resultIng In thIS agreed figure It appears clear however that It represents lost hours calculated on the basIs of the number of hours of work assocIated wIth the WashIngton assIgnment less the regular (and perhaps other overtIme hours) the gnevor actually worked dunng the penod of tIme whIch compnsed the WashIngton assIgnment. And SInce the gnevor dId not "lose" any of hIS regular work tIme, thIS would explaIn why the partIes' agreement WIth respect to alleged lost hours IS restncted to overtIme hours) The employer advanced a prelImInary obJectIOn whIch the partIes addressed together wIth the ments of the case EssentIally the employer argues that, as there IS no provISIOn In the collectIve agreement whIch addresses the assIgnment of work (whether regular or overtIme hours) In the context of the facts before me, the gnevance, whether as a result of my lack of JunsdIctIOn or on ItS ments, must fall The umon firstly asserts that the subJect of the gnevance IS not the alleged Improper dIstnbutIOn of overtIme hours, but rather the alleged Improper assIgnment of work. Although It acknowledges that the "non-assIgnment" resulted In the loss of overtIme work, It asserts that It was the faIlure to make the assIgnment (whIch Included both regular and overtIme hours) whIch 3 constItuted the breach of the collectIve agreement. The umon also acknowledges that, In makIng the assIgnment, the employer was eXerCISIng ItS managenal nght to "assIgn and dIrect employees" under ArtIcle 2 1 of the collectIve agreement. It claims, however that the employer IS oblIged to exerCIse such nght reasonably and that, In the CIrcumstances of thIS case It faIled to do so by not assIgmng the work In questIOn to the gnevor on the basIs of hIS semonty At the commencement of the heanng some efforts were made, unsuccessfully to effect a mutually acceptable settlement of the matter The heanng then proceeded. And although we heard VIva voce eVIdence (subJect to cross-eXamInatIOn) and full legal submIssIOns (includIng the cItatIOn of much caselaw), the partIes explIcItly agreed that these proceedIngs were beIng conducted pursuant to ArtIcle 22 16 of the collectIve agreement, the MedIatIOn/ArbItratIOn Procedure That provIsIOn of the collectIve agreement contemplates a procedure whereby some of the formal aspects normally assOCIated wIth the tradItIOnal arbItratIOn procedure gIve way to the Interests of expedItIOn. Thus, the partIes were able to conclude theIr cases In a sIngle day the results of thIS decISIOn, apart from otherwIse dISpOSIng of the gnevance, wIll have no precedentIal value (see ArtIcle 22 16 7) and, as dIscussed wIth counsel, my reasons In thIS decIsIOn wIll be conCIse Before outlImng my conclusIOn, It IS useful to elaborate bnefly on the facts gIVIng nse to the gnevance At the tIme of the gnevance, the dIstributIOn of "out of sector" work was subJect to the terms of gUIdelInes prepared and promulgated by Dave Bronson, FIre OperatIOns SupervISor Mr Bronson IS responsible for supervISIng the seven three-person crews (each composed of one RTl crew member one RT2 crew boss and one RT3 crew leader) whIch operate out of the Ranger Lake statIOn dunng the fire season. The gUIdelInes were establIshed In consultatIOn wIth the seven crew leaders and were not the subJect of negotIatIOn or agreement wIth the umon. Mr Bronson's uncontradIcted eVIdence was that the gUIdelInes were understood through that consultatIOn to be sImply that - gUIdelInes He explICItly reserved the nght to exerCIse hIS managenal prerogatIve notwIthstandIng the gUIdelInes In any event, to be clear semonty plays absolutely no part In the gUIdelInes Out of sector work IS dIstnbuted In a rotatIng fashIOn on a crew basIs - the ImtIal assIgnment IS by lottery subsequent assIgnments are ordered In a fashIOn whIch tends to equalIze the hours worked by each crew 4 The assIgnment In questIOn, however was not made pursuant to the terms of the gUIdelInes On Sunday August 19 2001 an e-maIl was sent to the Ranger Lake fire statIOn as well as to a number of other Mimstry statIOns The commumcatIOn came from the FIre Duty Officer on behalf of Mike Paquette who was the RegIOnal ExecutIve Manager the person from whom Mr Bronson would seek InstructIOn as reqUIred. The e-maIl outlIned to each of the recIpIent statIOns the need to assemble 10 four-person crews (composed of2 RPls, 1 RP2 and 1 RP3) to be deployed to WashIngton State the folloWIng Tuesday mormng. The Ranger Lake StatIOn was to contribute one such four-person crew to the effort. The e-maIl IndIcated the parameters to govern the process to be followed In selectIng a crew FIrst among the factors IdentIfied was that crews were to be made up of the "hIghest semonty staff' Mr Bronson, on the Sunday that the e-maIl was receIved at the Ranger Lake StatIOn, was on hIS day off In Sault Ste Mane Upon beIng advIsed of the e-maIl by the Sector Response Officer Agent on duty at Ranger Lake, Mr Bronson set out for Ranger Lake to effect the assIgnment. Upon hIS arrIval, he had a telephone conversatIOn wIth Mr Paquette to dISCUSS the manner of the assIgnment. Mr Bronson would have preferred to mImmIze the need to break up establIshed crews In order to make the assIgnment (although some fragmentatIOn would have been InevItable gIven that the call was for a four-person rather than the three-person crews normally employed at Ranger Lake) However the only InfOrmatIOn that Mr Bronson had at hIS dIsposal that day In regard to semonty was an outdated semonty lIst whIch lIsted the person to whom the RP2 assIgnment was ultImately made as havIng greater semonty than the gnevor (in fact the gnevor was semor to her at the tIme) Mr Bronson explaIned that, dunng the summer season, he has no need to consult semonty lIsts wIth respect to crew assIgnments (as already IndIcated semonty plays no role In the assIgnments under the terms of the gUIdelInes) Further dunng the season, there IS no other 5 apparent need under the terms of the collectIve agreement to have any regard to the semonty of fire crew members WhIle semonty plays a role In the hmng of seasonal employees, that process IS effected pnor to the start of the season (when Mr Bronson works out of Sault Ste Mane) SImIlarly whIle semonty plays a role In the order of layoffs, Mr Bronson explaIned that hIstoncally all members of the fire crews are laid off at the same tIme Thus, the only semonty lIst whIch was avaIlable on the Sunday In questIOn was the outdated one referred to Further there was no way to access further semonty InformatIOn from the "CORP A Y" office In Sault Ste Mane whIch was closed on Sunday And neIther dId Mr Paquette have access to such InfOrmatIOn (although Mr Bronson conceded that he dId not raise the Issue In hIS conversatIOn wIth Mr Paquette - for that very reason) What was made clear however In conversatIOn wIth Mr Paquette was that the assIgnments had to be made on the Sunday so that the affected employees' paperwork could be processed the folloWIng day for advanced customs clearance to the U S In order to effect departure first thIng Tuesday mormng. Thus, Mr Bronson made the assIgnment on the basIs of the outdated semonty lIst. He, only somewhat grudgIngly conceded that had he had correct semonty InfOrmatIOn at the tIme, the assIgnment mIght well have gone to the gnevor Two thIngs are apparent to me FIrst, the gnevor had a legItImate expectatIOn that he ought to have receIved the assIgnment eIther because hIS crew was the next to be assIgned out of sector on the basIs of the gUIdelInes or alternatIvely on the basIs of semonty pursuant to the terms of the e-maIl It does not Inexorably follow however that the gnevor therefore or otherwIse had a legally enforceable nght to the assIgnment. The other conclusIOn whIch IS apparent to me IS that Mr Bronson took a less than enthusIastIc approach to ImplementIng the terms of the dIrectIOn receIved In the e-maIl and clearly and very possIbly knowIngly applIed Incorrect InfOrmatIOn regardIng semonty However despIte that less than stellar adherence to hIS InstructIOns, I am stIll not satIsfied that the assIgnment constItuted a vIOlatIOn of the collectIve agreement. FIrst of all, there IS caselaw (see Gillies 2701/90 (Kennedy)) whIch establIshes that there IS nothIng In the collectIve agreement (unlIke ArtIcle COR8 2 1 of the correctIOnal bargaInIng umt collectIve agreement) 6 whIch, In any way regulates the assIgnment of overtIme work. And whIle the umon, lIkely for that very reason, argues that thIS gnevance IS not about the dIstnbutIOn of overtIme hours, the fact remaInS - as the partIes' agreement IndIcates - that, when all the dust settles, what IS at stake In the gnevance and what the gnevor has allegedly "lost" are overtIme hours It IS therefore pOSSIble to conclude that the gnevance IS, effectIvely about the dIstributIOn of overtIme or perhaps put somewhat dIfferently IS an IndIrect attempt to advance a claim whIch cannot be advanced dIrectly But even If that IS not an appropnate conclusIOn, I am stIll satIsfied that the gnevance must be dIsmIssed. NothIng In the collectIve agreement tIes thIS type of work assIgnment to semonty Indeed, there IS nothIng at all In the collectIve agreement whIch regulates the type of work assIgnment In questIOn. The employer was free to make the assIgnment on the basIs of semonty or not NeIther am I persuaded that the e-maIl InstructIOn receIved In commumcatIOn between managers whIch dIrected Mr Bronson to make the assIgnment on the basIs of semonty thereby elevated that dIrectIOn to the status of a legal oblIgatIOn under the collectIve agreement. The faIlure to make the assIgnment on the basIs of semonty does not vIOlate or otherwIse ImpInge on any speCIfic collectIve agreement nght. And even If the employer was otherwIse oblIged to exerCIse ItS management nght reasonably (a propOSItIOn whIch employer counsel dId not embrace) where no collectIve agreement provISIOn IS JeopardIzed apart from the management's nghts clause, I am not satIsfied that Mr Bronson's unenthusIastIc and Ineffectual adherence to hIS InstructIOns was unreasonable In the CIrcumstances Mr Bronson had to effect the assIgnment WIthIn stnct tImelInes and dId so on the basIs of the lImIted InformatIOn he had at hIS dIsposal He may have been Incorrect In hIS applIcatIOn of semonty but a mere error or sImple Incorrectness IS not to be automatIcally equated wIth unreasonable conduct. I should note that although the umon made some muted suggestIOns that the gnevor was demed the assIgnment as a form of repnsal for complaInts he made about workIng condItIOns - thIS argument was neIther vIgorously pursued nor clearly supported by the eVIdence (for one thIng, It appears clear that the gnevor was not umque In raiSIng such concerns) SImIlarly neIther am I persuaded that the employer's treatment of the party who receIved the assIgnment was Improperly motIvated or otherwIse a form of Improper favountIsm. 7 For these reasons, the gnevance must be and hereby IS dIsmIssed. Dated at Toronto thIS 20th day of January 2005 .~.~~ ~L~~~~l: .~ _. ram Her Ich Vice-Chair