HomeMy WebLinkAbout1976-0067.Barnfield.77-07-1267/76
CROWN EMPLOYEES .:I> 4!6(964 6426 __ Suite 405
GRIEVANCE SETTLEMENT 77 el00r Street Vest
EOARO
To.?ONTO, CntcriO
i&iS Ii42
_’ ‘.
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .'
Before ~C. , . L"'
THE GRIEVANCE SETTLEMENT BOARD
. . -: _
Between: Mr. Frank Barnfield
And
Ministry of Transportation and Communications
~. Before: KI, P. Swan'
Mary Gibb
H. E;,Weisbach Member
For the Grievor:.
J. A. Mi~llard
Ontario Public Service Employees Union
For the Employer: : :
N. H. Pettifor
Staff Relations Supervisor
Personnel Branch
Transportation and Communications
Hearing.:.
,
1. PilELI1-!IllAP.Y 1ss1:; -
At the connnencement of the hearing in this matter, a
procedural question of fundamental importance arose between the
tinion and the grievor, Rr. Frank 3arnfield. 0. Darnfield took
the position that, as his grievance was beinq heard, he ought
to be allowed to present it before the 3oard without the intervention
of the Union. The Union, however, advanced the view that the
arbitration process belonged to "the parties" .to the collective
agreement and that therefore the Union had carriage of the grievance
hefore us, and not the individual employer.
It was clear from the argument that F:r. 3arnfield and the
Union took differing views as to the case which ought to be made in
respect of his grievance, and so the Eioard retired to consider its
position on the preliminary matter. !Je subsequently gave, orally,
our decision that the grievance properly could be carried to arbitration
only by the Union, and that consequently it was tne Union which the
3oard would hear as to the merits of the grievance. Our written
reasons for this decision follow:
The Crown Employees Collective Sarg&ining Act provides, in -.
s. 13, for a reference of all disputes, arising from the interpretation,
application, administration or alleged violaticn of the agreement, to
arbitration before this Goard. The precise provision reads:
. .
3.
3.
The parties, in transforming this legislative requirement
into a collective agreement ,provi,sion, have used somewhat different
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lan9uage: :. ,.
-' 3Ol4.1 If the‘gri&cr is nqt satisfied with the
decision of the Deputy Mini&er.dr his designee
:or if he.,d+ not receive the decision within the
specified time.the gkievoi.2may apply to the ., Grievance SettJemenf Boa;d>for 'a hearing of the
grievance: -,. ,.-
30.4.i withi~Afifte~en (is) days o?the date he
received the d&siq;'or'
30.4.3 within fifteen (15) days of the specified
time li?.it for receiving the decision.
30.5 :The employee may be accompanied and
represented by an employee representative
at each stage of the grievan,Fe procedureY,,j, ..1
-Under theco&&onding provision of the Ontario Labour
I. Relatibns Act,.R.S'.0.'1970, c. 232, as amended, s.37(1), similar
statutory language is used to require a mechanism -for reference
of disputes to arbitration: .~
Sec.37 (1) Every collective agreement shall provide for
the kinal and binding settlement. by arbitration, without stoppage
of w?rk, of all differences bstween the parties arising from the
interpretation, applicat?on, Aninistration or alleged
violation of the agreement, including any question as to whether
a matter~is.arbitrable.
.(2) If a collective agreement does not contain such a
prov&sion as is mentioned in subsection 1, it shall be deemed
to contain the following provision:
Where a difference ari& betwe&,the parties relating to the
interpretation, application or administration of this agreement,
including any question-.'as to whether a matter is arbitrable,
or-where an alLegation is made that this agreement has been
violated, either of the parties may, after exhausting any
grievance procedure established by this agreement, notify
t.%e other party in writing of its desire to submit the
difference or al-?egation to arbitration and the notice shall
contain the name.of the first party's appointee to an
ar3itration boa&. The recipient of the notice shall within
’ I
five days inform the other party of t.‘x .mne of its
appomtee to the arbitration board. ?!:e Cd0 J.yi&ntees
so selected shall, within five days of :he z?poir!cme:lt
of the second of them, appoint a third person who shall
be the chairman. If the recipient of t!x notice falis
to appoint an arbitrator, or if t.5e two appointees fail
to agree upon d chairman witbin the time limited, the
appointment shall be made by the cinister of Labour for
Ontario upon the request of either party. TA5e arbitration
board shall hear and determine the difference or allegatio:,
and shall issue a decision and the decision is final and
binding upon the parties and upon any employee or employer
affected by it. The decision of a majority is the decision
of the arbitration board, but if there is no majority t.5~
decision of the chairman governs.
Under this legislation, arbitrators have often held that the process
of arbitration belongs to the parties to the collective agreement and
not to individual employees: Re Le Syndicat yes Ponctionnaires
Provinciaur Du Quebec And Le (;ou*rernement IX Quebec, Ministre De
.L’Education (19711, 23 L.A.C. 117 (Lande); Re Gordon at al and
East Side Plating Ltd. et al., C1972) 2 O.R. 46?, 26 D.L.R. f3d)
34 (Ont. H.C. ) : Re Governing Council of the Univezsit;l of Toronto
and Service Employees Union, Local 204 11974) 5 L.A.C. (2d) 304
Weatherill). There are, however, somewhat different considerations
where a collective agreement (or a statute) permits an individual
employee to invoke the arbitration process of his or her own motion.
5ere the agreement clearly does so, and that may to some extent
affect any right the Union might otherwise have had to decide to
arbitrate, or even to settle or withdraw an individual's grievance;
we do not, however, have to deal with that issue now. Shculd it,
however, affect the Union's essential right to argue the case before
us?
We co not think so. S. la(l) clcarl:/ orcvides that our
5.
award "is final and binding upon the parties and the enplo:lees covered ,~, J,, -i
by the agreement". blhen,'therefore; a grievance relating'to the . . , .' , ,!,..,
interpretation, application, administration or alleged violation ,_ 'I.
of the agreement is before us, it is clear that it is the union,
which as representative of all the employees in the bargaining unit
. '. is primarily respons~ible for administering the collective agreement
I with~the employer; which'the Grievyce Settlement Eoard ought to
: : . hear on the merits of such a 'grievance. : :
- :
That is not to say that there may not al;o be occasions
when an individual grievor may, because of an interest adverse (.
to that of the union, be entitled to address the ioard on his own
behalf: see Re Bradley and Ottawa Profeisional Fire Fighters Ass’n
(1967), 63 D.L.R. (td) 376, I1967) 2 O.R. 311 (C.A.);Re.Hoogesdoorn
&inp Greening Metal Products &‘Screening Equipment Co,.(1967), 6; D.L.R.
(Zd) 641, I19681 S.C.R. 30. This did not appear to be such a case;
indeed the record should.shoy that the Union put the grievor's case
fully and fai'rly to the Board:, Nevertheless, k!r. Barnfield was
offered the opportunity both by the Cnion and by the Board to make'
separate representations after the Union had been heard. !le chose
not to, however, sand retired from the hearing immediately after our
oral' decision noted above.
2. THE MERITS OF THE GRIEVANCE
--The merits of this grievance turn on an interpretation cf
the general language of the collective agreement in respect of the
'
6.
specific employment requirements 0 f the grievor and certain other
emoioyees who are employed at the Thorold Tunnel. T!I? grievor is
a Maintenance Mechanic 2, and he is employed on a shift work tasis
along with other employees to provide continuous maintenance services
at that location.
The agreed statement of facts produced by the parties
indicates that there has been a continuing dispute over the grievor's
work schedule. and that certain accorrrmodations have been reached in
respect of some of the issues raised thereby. Only one issue really
remains to be determined, and the history of the earlier discussions
is not really relevant to that issue.
Since October 13, 1976 the grievor has been working the
following shift schedule:
6 night shifts
4 days off
7 afternoon shifts
2 days off
6 day shifts
2 days off
1 night shift
This schedule, over a 28 day cycle, provides for twenty
working days and eight days off, or an average of five working
days and two days off per week. The grievor, however, contends that
he is entitled, not to an average two days off per week, but to two
consecutive days off after each five day work cycle.
The provisions of the collective aorecment relevant to
the grievor's employment (under Schedule 3.7) are set out be;cw:
7.
ARTICLE 7 - HOURS OF iiORK
7.2 .SCiiEDVLE 4 and 4.i
The normal hours of work for employees on
this schedule shaUbe.forty (40) hours
per week and eight (8) hours per day. _j : ': '.. ~'
ARTICLE 8 - DAYS OFF 'I , 8.1 There shall be twd' (2)'co~sec&ive days off
which shall.,,be referred to as scheduled days
off, except that days--off may be non-consecutive
if agreed upon between the employee and the Employer.
.
As can be seen, these provisions are s‘keletal, and reflect the
inherent difficblty in drafting a collecfive agreement to cover
all the.possible circumstances which may arise' in a bargaining unit
.
as large and diverse as the present one. These provis;ons must, of
course,.be'r@ad in light cf the statutory reservation of management
rights included in s.l7(l)(a) of the Crown Employees Collective
Baraaining Act: ---- .'
17.-(l) Every collective ag&ement shall
be deemed to provide that it is the exclusive
function of the employer to manage, which
'function, without limiting the. generality oft
the foregoing, includes the right to determine
_,
(a) employment, appointment, complenent,
organization, assignment, discipline,
dismissal, suspension, wokk methods
and procedures, kinds and locations
of equipment and classification of
positions; and
t ,:
The question before us, really, is the extent to which
._
.management initiative to deploy its work force is circumscribed by
the terms of the collective agreement in respect of the grievor Andy
those in his 'position. To some extent this turns on the meaning
. .
of the sword "normal" in article 7.2, and on the appropriate reference
provided which must be implied, since it is not expressed in article 2.
In the employer's submissions, "normal" refers to the
usual practice across the bargaining unit, where shift work is not
cocanon and varies in prevalence depending on seasonal requirements.
Thus the grievor's position could be characterized as "abnormal",
and the requirements of article.7;: can be relaxed, provided that its
spirit is still honoured. In addition, the employer has agreed, in
the course of dealing with this grievance, that days off must
come in consecutive pairs. It maintains, however, that as no
specific period is set out in article 8.1, there is no reauirement
that days off come in any particular cycle, or weekly as asserted by
the grievor.
The Cnion's position is predicated on an interpretation
of "normal" that relates personally to each individual employee,
so that when the "normal" hour requirement is not met, overtime
is payable for additional hours. Similarly, the Union would infer
a weekly cycle in article 8.1. so that the two days off would
occur in every week.
\le have researched extensively the private sector arbitral
jurisprudence on both of these issues, and we have found it helpful,
but not conclusive, in our consideration of these two points. First,
we note that the use of such expressions as "normal", ',standard"
or "regular" to modify working hours have invariably been interpreted
to have two major consequences. First, they have been held to set
a standard for the payment of overtime, on the basis that !iours
outside the "normal" hours are deemed to be payable at premium
rates: See, e.g. Re Printing Specialties and Paper Prohucts Union,
L&xl 466 and Interchem Can&a Ltd. (1969'), 21 L:A:C. ~46.'
(Weatherill). Second, they have been considered to set a
pattern so as to limit mana,gerial discretion ,in scheduling work,
by preventing "abnormal" hours from being' scheduled any more
regularly than can be justified by reference to "abnormal"
circumstances: See, e.g. Re United,Glass aid Ceramic Workers, Local
_: 248, and Canadian Pittsburgh Industries Ltd. (1072). 24 L.A.C. 402 (Brown).
We note no precedent for the interpretation that there can be employees
who regularly work "normal" hours and other employees who, because of
the nature of their job:, work "abnormal" hours. Indeed, upon reflection,
: r
we can see no justification for adopting such an ~interpretation in this
case. The parties have recognized the need for a'variation in working
hours by providing for the various work schedules set out in article 7.
It could scarcely have been their intention to do.so, and still to intend
that other schedules could be dealt viith on the basis that the employees
concerned were (in respect of work schedul.es) "abnormal". In our .
view words in a collective agreement shou1.d be of,general application
unless expressly restricted, and this view is strengthened by the
fact that the.parties have.provided expressly for a number of different
schedules to meet different circumstances of employment.
This does not, however, conclude the present dispute.
It remains to be seen whether, even on this view of the word "normal",
the disputed schedule can be fit within the requirements of the
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1;.
collective agreement. As we read articles 7.2 and 3.1, there
are three specific requirements set out, beyond whici! management
initiative to schedule work is untranuneled:
(1) There must be no more than forty hours
scheduled per week.
(2) There must be no more than eight hours
scheduled per day.
(3) There must be two consecutive days off (per wee!:,
if we adopt the unicn's argument for the sake of
this analysis).
Assuming no consideration is given to the employer's
argument of "abnormality" of the requirements of this job, are
all of these considerations met? Clearly no more than eight
hours has been scheduled in one day, and the forty hour week
and two consecutive days off reouirenents are mutually dependent
once the eight hour day requirement is met. :QIC!I of this issue
will therefore turn on the meaning of "week".
It is interesting that the Concise Oxford ;)ictionarz,
Eth Edition gives as its first two definitions of "week" the
following:
week n. 1. Period of sever? days reckoned USU.
from and to midnight cr! Satxday - Sxday....;
2. Period of seven successive c'aqs reckoned
from any point.
If we take the first, more restrictive, of these definitions
and apply it to the rotating schedule given to us as Exhibit 3, the
first employee (Employee 0) works the following shift sc!ledule over
a four calendar week cycle, starting at midnight Saturiay - Sun&:!:
; ,,i,3 Monday Tuesday Wednesday Thursday iridas/ Saturday ._
OOOl- OOOl- ,. OOOl- oop- Off Off
0800 0300 0800 0800
c ~, ,._l, ::
YeekOff Off _~ ,,1600- 1600- 1600- 1600- 1600-
2 2400 2400 2400 2400 2400
I~eek11600- IGOO-~ Off 'Off
3 I2400
0800~ 03!Io- 0800
2400
I
_ 1690 _( 16Oq 1000
:
::'eek!O333- 0300- 0300-
4 ml0 1600 1600 * Off Off OOOl- OOOl-
0800 0800
For this particular employee's schedule,therefore, all
of the conditions are met: in each calendar week there are no more
than forty hours and there are two consecutive days .off. Of course;
if we were to insist on applying the calendar week requirement, other
employees working on interlocking schedules could not meet all
-.,of .these conditions since the distribution of days off would be
different. The parties, however;have not specified "calendar
weeks", but merely "weeks", and there appears to be no reason
to prefer one of the definitions above to the other. Therefore, by
merely designating a different day of the week as the starting day '
for each of tie four employees (or groups oft employees) required
to staff,this rotating schedule, the employer will be seen to have
met, in respect of each employer or group, the requirements of the
collective agreement.
--We note that the collective agreement does not specify
the days of the week on which work is .to be performed, does not specify
that there must be five consecutive working days (but only that days
off be consecutive) and does not prohibit the days off.in an,e sweek.
from being contiguous uith those in the next. Given tile absence
of such limitations we must take the intention of the parties as
set out in the collective agreement. As a consequence, we find that
the shift schedule on which the griever has been working since
October 13, 1976 is not in breach of the collective agreement. Se
are supported in this conclusion by the decision of the board cf
arbitration in me United Autombile mrkers, iocal 984, and Cmzdian
Acme Screw K Gear Ltd. 11963), 14 L.A.C. 84 IBemetfl which, on
materially identical contractual language but on slightly different
reasoning, reached the same result.
The grievance is accordingly dismissed.
Dated at Toronto this b.relft:: day of July 1977'.
K. P. Swan
Vice-Chairman
I cone-r
Nary Gibb
Member
t!. E. !Jeisbach
member