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HomeMy WebLinkAbout1977-0002.Bateman.78-12-08. .: i ,. ONlAwJ CHOWN EMPLO”lES -GRIEVANCE W;bEMENT I,90 Dlhvms STMRtE7 WE.5,. mRoNi0. ONiAillO. U5G ,A-SWIE 2m 7E‘LPHONC: 116,598- 0688 Z/i? IN THE MTTEX OF AX XB!T~TIO:i 2der The CROWN EMPLOYEES COLLECTI:'E BARGA;i4;:IG ACT Befwe THE GRIfi~ANCE.SETTL~?!ENT BOARD ?etweerl : %r; R. Batenan .And The Cxwn fn Ri.;ht of intario Ministry of Transpcrtexion :nd Ccmunicati~r,s :*:0t-e: Jrofessor 3. 2. 5. Prit!:ar< Vice-Shairman -- Mrs. :<. Gibb Kei%er I".r. R. Csckrxe Ne5bec For the Gr;evor: - Mr. $. iUa3i, Grievance Cfiicer Ontario Pubiic %?ice EmpioyeeS cn:Cfi Xl1 Y3nSe Street /.. Tdrozto, Ontario For the Eno!ljyer: Mr. II. H. ?ettifor Staff Relations Supervisor Personnel Jranch Elinistry of Transqortaticn and Ccmunicctions He?r:ng: Vcrercber St:, l3iZ kite 2!00 izo "Jjjp&s 5:. 'A. T3ml?G, 2r,:arfo ._' -2- : By a grievance dated November 24, 1976, the grievor, Mr. Bateman, alleges that the Ministry has violated Articles 7.2, 8.1 and 1G.l of the collective agreement in its winter scheduling of the work week. In particular., Mr. Bateman alleges that her has been required to work more than five consecutive days in certain work weeks while in the union's submission the combined effect of Articles 7 and 8 of the collective agreement is to oblige employees to work only five consecutive days' within each work week and to entitle employees to two consecutive days off each work week.This interpretation' of the collective agreement is derived from .=ze Barnfield 67/76 in wh:'ch the Board held the effect of Articles 7.2 and 8.1 is to require that: (1) Thele mist be no mre than forty hours scheduled per week. (2) There mst.be no more than eight hours scheduled per day. (3) There mwt be two consecutive days off (per week, if we adopt the union's argument for the sake of this analysis). As a remedy, the grievor seeks a declaration that the winter schedule violates the collective agreement and payment at premium.rates for those days worked in violation of the collective agreement. The relevant provisions of the collective agreement are Articles 7.2, 8.1 and 16.1 which are as follows: . 7.2 8.1 16.1 -3- The nokmal hours of work for employees OR this schedule shall be forty (40) hours per week and eight (8) hours per day. There shall be two (2) consecutive days off which shall be referred to es scheduled days off, except that days off may be non-consecutive if agreed upon between the employee and the Employer. Authorized work pesformed on an employee’s scheduled day(s) off shall be considered as overtime. The grievor is a Highway Equipment Operator +3 in the Hamilton -District of the Ministry of Transportation and Communications which invdlves'~patrolling of highways to identify the need for service and the supervising of the servicing process. During the summer months, the operators work Monday to Friday, 6:OO a.m. to 4:30 p.m. In the winter, however, due to the effect bad weather may have on the highways, the Ministry changes to 24 hour patrolling, seven days a week. To accomplish this more extensive coverage, the Ministry institutes a revolving, twenty-four hour shift, seven days a week. The schedule involves a scheme of eight hour shifts rotating every three weeks. The winter schedule is introduced in November and removed in April once the bad weather is over. The schedule can best be understood by a graphical presentation of the three week rotation. The "A", "5" and "C" refer to three separate employees. The grievor was assigned-to the "A" schedule for the period in dispute. -4- I -, m f 1-1 -IA’ I I I.. -. I, I ^ N -5 1 : This schedule repeats every three weeks throughout the winter period. IV The grievor's complaint is that in certain work weeks under this schedule he is obliged to work more than five consecutive days thus doing more than five eight-hour shifts.(40 hours) in a work week. By necessary implication the grievor also complains that in certain work weeks he is denied his two consecutive days off. The grievor argues that the work week.should be defined as running from Saturday morning to Friday night. If the work week is so defined, then the grievor's submission is correct. It can be seen by reference to Table 1 above that on the Saturday to Friday work week,the gr'ievor is required to work six consecutive days one week in three and that by necessary implication he receives only one day off every third week. The Ministry's answer is to deny the grievor's complaint. The Ministry points out that if the work week is defined as running from Sunday morning through Saturday night the grievor works five eight hour shifts per week and receives two consecutive days off each week. If reference is made to Table I above, the employer!s argument can be seen as factually correct. The heavy vertical lines on the Table define the work week in accordance with the employer's srrbmission and it can be seen that on that definition of the work week there is no violation of the collective agreement. It should be readily apparent, then, that -.he success or failure of the grievance turns on how the work week is defined. I: the Ministry is free - 6 - to define the work week as it wishes, the grievance fails. If, on the other hand, by.'the terms of the collective agreement or by the ministry's own actions, the Ministry's ability to define the work week is restricted, then the grievance succeeds if the work week is defined as running from Saturday to Friday. v Before turning to the grievor's arguments it is useful to review the Board's decision in R= Barnfield 67/76 since the major issue in this case is whether or not me Bernfield has disposed of the matter. In xe 6arn~e16 the Board also faced a disputed work schedule and was required to- consider whether the schedule could fit within the requirements of the collective agreement. The Board held: AS we read articles 7.2 and 8.1, there are three specific.requirements set out, beyond.which management initiative tc schedule wcrk iS un- trammeled: (1) There mLlst be no m3re than forty h0~11.s sche@!Qed per week. (2) There must be no more than eight hours scheduled per day. ' (3) There must be tiJo consecutive days off (per week, if we adopt the union's ar+ment for the sake of this analysis). Assuming no consideration is given to the employ&r's argument of "abnormality" of the requirements of this job, are all of these con- slderations net? Cleasiy no nxze than ei@t hours has been scheduled ir: one day, and the forty hour week end tvo consecutive days off zequiremer.ts are mutually dependent once the eight how day requirenu?t is met. Much of this issue wili therefore tun on the meaning of "week" . . It is interesting that the Concise Oxford Dictionary, 6th Edition gives as its first two.defir.itions of "week" the foliowing: week Il. 1. Period of seven days reckoned 2s~. fro.7 and to Adnight on Saturday - Suday . . . . . > _. ?eriod of seven successi:~e days retimed frca any point. - 7 - The Board then applied the more restrictive def.inition to the schedule for one of the four grievors and then continued: For this particular employee's schedule, therefore, all of the conditions are met: in each calendar week there are no mxe than forty hours and there are two consecutive days Off. Of COUS‘SB, if we were to insist on applying the calendar week requirement, other employees working on interlocking schedules could not meet al: 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 e&$X?erS r to be no reason to prefer one of the definitions above to the other. Therefore, by mereiy designating a different day of the week as the starting day for each of the four employees (or groups of employees) required to staff this rotating schedule, the employer &ill be Seen to have met, in respect of each employer or group, the sequir&ents of the collective agreement. It can be seen thenthat if Re aarnfield is accepted and is applied the grievance must fail. The Ministry has exercised its authority and discretion under Section 1711)~ia) of The crows! ~mployees~collective axgaining Act (a discretion not restricted in this regard by the collective agreement) to define the work week as running from Sunday to Saturday and has therefore met the requirement.s of Article 7.2 and 8.1. In response to this position the Union made three submissions on behalf of the grievor. These were that: (i) me ~arnfj~~d was wrongiy decided; . (ii) The Ministry itsel~f defined the work week as Saturday morning to Friday night in fhat (a) the pay period is Saturday morning to Friday night and (b) the posted schedule runs from Saturday morning to Friday night; (iii) The Sumner schedu!e implicitly defines the >jork week as Saturday morning to Friday night and :he I,iinistr:/ is not free to chanye the work wek ~xcepr by agreement with tne Union or by granting additional days off during a transitiondi period. -a- With regard to the first point that ae ~arnfle~ was wrongly decided, the Union argued first that the Board failed to answer the right question and secondly that the Board exceeded its jurisdiction by considering improper or irrelevant information and evidence and thirdly that the Board found support for its decision in a case not on all fours with me ~arnfield. We have considered each of these arguments'and are of the view that none of them are meritorious. Neither of the first two arguments are.supported by a reasonable reading of the decision and the third, regardless of its merit, .does not in any meaningful way go to the correctness of the Board's decision. In the result, we find that there was no error of principle in the aarnfield decision. Although we are in full agreement with Barnfieid, the Union's argument did raise th,e question of the appropriate weight to be given to an earlier decision of the Grievance Settlement Board and therefore we want to give our views on this subject. (For a discussion of this subject generally, see "The Binding Force of drbitrrtlcn Aards" (1958) ‘ 8 L.A.C. 323 (iieeatherill); drown 6 Peatty, Canadian Labox Arbitretion (2977) pp. 13-16; and, in the federal pqubbiic service, Joiliffe, "Adjudication i!: the Canadian Public Service” (:0X), 20 :4cGill i.2. 351 ‘?t 358). * A panel of this Board is not bound by the doctri~ne of stare declsls -,. and previous decisions should not always be treated as binding authorities. At the same time, however, there are significant advantages tc gaini.ng - 9 - .’ consistency in subsequent interpretationsof the collective agreement. As Professor Laskin (as he then was) stated in the context of the private sector: It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute-between the sam parties arising out of the same dgreemnt where the dispute involves the interpretation of the Agreemnt. Xonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case before it on principles that it belleves are applicable. (Brewers' Warehousing Co. Ltd. (19541, 5 L.A.C. 1797 (Laskinl at p. 1798; see also Wickett & Craig Ltd. (19631, 13 L.A.C. 363 (Arthursi) The applicability of these views to decisions of the Grievance Settlement Board is clear; the collective agreement and the parties - the Ontario Public Service Employees Union and the Management Board of Cabinet - remain the same for all decisions issued by the Board. While the particular employment situationscovered by the agreement vary widely, the parties must assume comprehensive responsibility for the negotiation, administration and interpretation of the collective agreement. Therefore, we are of the view that this panel of the Board should not accept or advance a wholly contradictory interpretation of the relevant provisions of the collective agreement .>n the absence of a demonstration that the interpretation arrived at by an earlier panel iS “Clearly WOng” (Re RCA Ltd. !1973), 2 L.&C. fZdj 143 iRaynerll. That is to say we are of the conviction that where one panel of this Board has adopted an interpretation of a particular clause in the . . - 10 - agreement, the parties can not be permitted and should not be encouraged to relitigate that determination unless the prior award is manifestly erroneous. Were it otherwise and were this panel, or any other, to simply disregard earlier determinations made by this Board, the parties would be precluded from ever being able to rely upon our decisions with any sense of certainty or finality, To the contrary, such a.practi,ce would actually encourage an unsuccessful party in one case.to seek such further hearings before different panels of this Board in the context of other grievances until such time as it secured a result it considered just and proper. Needless to say this Board does not intend to pursue such a policy. Rather, both common sense and the arbitral jurisprudence recognize that if issues between the parties are, pursuant to Section 16 of The Cr0m Employees Collective aarqaininy Act, to receive a final and binding determination, the parties must accept, in the first instance and subject to judicial review the interpretations placed on their agreement by this Board. In the event those interpretations are unacceptable to either or both of the parties their recourse for relief lies in the negotiation of the succeeding collective agreement and not by way of the re-adjudication of the same issue before a different panel of this Board. VII The union's second and third arguments are different from the first . in that each of them can be seen as an application of aarnfieid to the ~particular facts of the case: The second argument - that the Ministry itself def,ined the work week as Saturday to Friday - depends on finding - IL- that either the work week is necessarily congruent with the pay period or that the posted schedule defines the work week. With regard to the pay period, we find no support for the argument that by setting a pay period the Ministry has implicitly defined and bound itself to a particular definition of the work week. Rather, we prefer the view that the pay period has purposes different from those of the work week and that in the result there may well be numerous situations in which the pay period and work week will diverge. With regard to the posted schedule (Exhibit "A"'of Exhibit 1) we are not prepared to find that the format of the graphical presentation of the work schedule carries with it a definition of the work week with all the consequences such a definition would imply. Rather, we prefer to view the schedule as a schedule and nothing more; it provides the employees a statement of their work obligations during the winter period. It does not, in'our view, commit the Ministry to a particular work week. The union's third argument is that the summer schedule implicitly defines the work week as Saturday to Friday and the Ministry is not free to change that work week except by agreement with the union or by granting additional days off during a transitional period. There are, in our view, two flaws' in the argument. First, the summer schedule does not necessarily define the work week as Saturday to Friday; it is equally consistent with the Ministry's obl.igations and actions to find that the work week implicit ., . - 1: - in the suiinner schedule is Monday morning to Sunday night. Such a work week would also give each employee two consecutive days off each week, Second, there is ~no support in the collective agreement for the proposition that the employee is able to change the work week only by agreement with the union or by granting additional days off. Rather, Article 16.1 of the collective agreement contemplates payment of premium pay when a change in the definition of the work week leads to a transitional violation of the dictates of Articles 7.2 and 8.1. Therefore, at a maximum, the 9rievor may be entitled to receive premium pay for one or two days to compensate him for any violation of Articles 7.2 and 8.1 which occurred during the weekend when the change from the summer to winter work schedule took place. The Ilinistry recognized and accepted its potential liability in that regard and the parties agreed at the hearing that they could settle that aspect of the grievance by mutual agreement. VIII In the result, the grievance is dismissed except to the extent of the potential liabi],ity for premium pay for one dr two days incurred by the Ministry during the schedule change. We will remain seized oi the matter in the event that the parties are unable to agree to the extent of this liability. . Dated at Toronto .this 8th day of December, 1978. ,1. ?,. S. Friciiard I concur --- :1 . Libo I concur II: ! ,ce-Chairran --- :~ler!x r