HomeMy WebLinkAbout1977-0081.Broderick.78-11-30IN THE MATTER OF AN ARBITRATION
Under The.
CROWN EMPLOYEES COLLECTIVE 'BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. John H. Broderick Gri evor
Before:
For the Grievor:
The Crown in Right of Ontario
Ministry of Natural Resources Employer
Professor Mary Eberts Vice-Chairman
Mr. John H. Morrow Member
Mr. Dan Anderson Member
Mr. R. Nabi, Grievance Officer
Ontario Public Service Employees Union
1901 Yonge Street
Toronto, Ontario M4S 225
Far the Employer:
Mr. J. A. Temple
Supervisor, Compensation
Personnel Services Branch
Ministry of Natural Resources
Hearing:
May 3rd, 1978
Suite 2100, 180 Dundas St. West
Toronto, Ontario
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We are dealing here with three grievances filed by John H.
Broderick, arising out of the events of the week of April 18, 1977. Mr.
Broderick is a Unit Management Forester in charge of the Rice Lake Unit,
one of two comprising the Lindsay District of the Ministry of Natural
Resources.
At the relevant time, Mr. Broderick was one of the Vice-
Presidents of the Ontario Public Service Employees Union, and a member
of the Union's Executive Board. The Executive Board governs internal
operations of the Union and makes policy for it. Mr. Broderick was a
member of the executive connnittee of the Executive Board. He had also
been elected as one of the Union representatives on the Joint Insurance
Benefits Review Committee, a consultative body set up by the Employee
Benefits Agreement. Leave for Mr. Broderick to attend a meeting of the
Joint Insurance Benefits Review Coannittee on April 19, and a meeting of
the Executive Board on April 21 and 22, was requested by the Union and
denied by Mr. Charles Gray, Director of the Lindsay District. Mr.
Broderick went to the April 19 meeting anyway.
One grievance complains of the withholding of his pay for
April 19, and the imposition of a ten-day suspension without pay, for
going to the April 19 meeting. The other two complain of the refusal
of.leave for April '21 and 22.
TheExecutive Board Meetinq
There is no dispute that the question of leave for the Executive
board meeting on April 21 and 22 is,governed by the Working Conditions
Agreement. The parties further agreed that the Working Conditions Agreement
in force at the relevant time was that of January 28, 1976 to January
27, 1977 (contained in the "yellow book"). Article 25.5.1 of that
Agreement stipulates:
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Upon request by the Union, confirmed in writing, and
provided that reasonable notice is given, the Employer
shell grant leave with pay and without loss of credits
to employees elected as Executive Board members and
Executive Officers of the Union, for the purpose of
conducting the internal business affairs of the Union.
There was no suggestion by the Ministry that notice of the
need for leave to attend the Executive Board meeting was inadequate.
Differences between the parties centre on whether the employer was
justified in refusing leave. Article 25 of the Working Conditions
Agreement provides for the granting of leave for a number of union
activities: attending the annual meeting; participation in negotiation,
mediation or arbitration; and participation in grievance procedure. The
Article also allows leave for Executive Board members and Executive Officers
of the Union to conduct internal union activities and leave of absence for
the President and First Vice-President of the Union during their terms of
office. Article 25.7 of the Agreement states:
All re'quests for leave of absence permitted in these
sections shell be sent to the Directors of Personnel
of the affected Ministries with copies to the Director,
Staff Relations Branch. It is understood that the
Employer may withhold leaves requested by the Union
if such leaves unduly interfere with the operating
requirements of the Employer.
The Ministry contends that the leaves requested would have unduly
interfered with its operating requirements. Mr. C. R. Gray, the District
Manager, wrote denying the leave substantially as follows: (Exhibit 13):
While we had hoped to accomnudate your request for April
21 & 22, due to exceptionally werm weather, it is our hope
to get our spring work program, tree planting and fire
prevention, in to full operation during the period requested
by you. Needless to say, the demands on all our staff at
this time of year are great.
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Mr. Gray testified that the Ministry feared a repetition in
the spring of 1977 of the very serious fire situation of the previous
spring, which had set a record. It was testified that Mr. Broderick's
direct involvement in province-wide fire contingency plans was not too
likely - it was the Supervisor of the Lands and Mineral Resources Program
who was on the Provincial Fire Team - but Mr. Gray stated that Mr. Brod-
crick would be needed even more in Lindsay should the provincial plans
come into effect. Testimony was also given about Mr. Broderick's
responsibility to take initial steps to combat any fire in the 5000 acre
Northumberland Forest, which formed part of the Rice Lake Unit; the
position of the Forest Technician who usually did fire spotting and
prevention there had become vacant in April.
As for the tree planting program, Mr. Gray testified that about
340,000 seedlings would be put into the Rice Lake Unit. The planting
period usually lasted about four to five weeks, six at a maximum, and
in 1977 the seedlings were taken from the nursery on April 5. The
mortality rate of the seedlings was high, and the Ministry had begun
a series of test plot plantings to determine the causes of the high die-off.
Mr. Broderick, as Management Forester, is in charge of planning
planting for his Unit, over the summer fall and winter. Under one of the
permanent civil servants who worked for Mr. Broderick was a planting crew
of about fifty unclassified staff. In addition to the planning, Mr. Brod-
crick is responsible to see that the planting is carried out. He visits
the various planting sites in his Unit,to ensure the quality of work,
coordinates the delivery of seedlings to the various sites, often doing
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the delivery himself, and cooperates with the other Unit Management
Forester in the Lindsay District in aspects of the planting that affect
both areas. It was argued by the Ministry that because of the high die-off
rate of seedlings, and because planting is in any event a sensitive time
of year, Mr. Broderick's presence in the District was necessary.
Mr. Gray also testified that temporary absences of other staff
in the District made it more difficult to spare Mr. Broderick. He
stated that the Supervisor of the Lands and Mineral Resources Program was
away on a fire training course in the week in question, and would be going
on another course the first week in May. One conservation officer was
away all Sumner on a course, and five employees went in the first week
in May to learn how to deal with rowdyism at park opening time. Mr. Gray
had no discretion about the timing of these courses, as they were planned
centrally.
Article 25.7 requires that the leave requested unduly interferes
with the operating requirements of the Employer. The Shorter Oxford
English Dictionary, 3rd edition, defines unduly as:
I.. Without due cause or justification; unrightfully,
undeservedly. 2. To exce.ss; beyond the due degree.
Absence will usually always interfere with operations to some degree. What
is required is excessive interference. The grievor contends that this degree
of interference should be found only where the Employer as a whole, rather
than the Ministry in question, is inconvenienced; where the interruption
is of such a nature that an alternative way of doing business could not
be found; and where there is more than a minimal expense caused by the
absence. It is also argued that the onus of showing justification in
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refusing leave is on the employer.
We do not think it necessary to elaborate in this manner on
then test set out in the Article itself. Whether an interference is undue
will depend on the circumstances of each case, and the concept of "undue"
or 'excessive" interference is, we think, sufficient to guide those
making judgments in individual instances. In a large bargaining unit,
with many different kinds of operational requirements, too specific a test
would rob both parties of flexibility.
In the circumstances here, we find that the employer has not
shown that Mr. Broderick's absence on the 21st and 22nd would cause undue
interference. Mr. Broderick was not on the Provincial Fire Team. He was
not, according to Mr. Gray, the person in charge of developing a fire
emergency plan for the Lindsay District. While he may have had respons-
ibilities for the Northumberland Forest, the evidence shows that he may
not have been reachable even if he had stayed in the District. His tree
planting work kept him out in the field, and Mr. Gray - somewhat suprisingly -
could not say whether there was a radio in the truck used by Mr. Broderick
for his field work. There was no evidence tendered by the Ministry of
i~ts inability to call Mr. Broderick back from Toronto should serious
problems arise, and no evidence of any attempt on its part to make such
contingency plans. Although there was a real alarm about fire, the Exhibits
entered by the Ministry show that it was focussed on the northern and
north central districts of the province , not right in the Lindsay District.
Mr. Broderick had, in addition, finished a substantial part of
the tree planting operation: its planning. His evidence was that he had
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arranged for extra crew to work the week of April 18. He was able to
share the work of fetching trees from the nursery with the other Unit
Forester. It does not appear from the evidence that he or his crew was
directly responsible for laying out the assessment plots to determine
why the seedlings were dying at such a rate. On the days in question,
Mr. Broderick in fact spent his time in the office, answering accumulated
phone and mail enquiries.
We therefore find for the grievor with regard to the grievances
about the Executive Board Meeting. He has asked for compensation for
all losses arising from the Employer's action, which involves restoration
of the honorarium he would have received for attending the meeting.
We do not think it appropriate to agree to this claim: an honorarium is
given for the extra time and trouble given to the Union, as a token of
gratitude. If for whatever reason, this time is not given, a token of
appreciation does not seem in order, particularly where it would not be
paid by the recipient of the services.
The Joint Insurance Benefits Review Committee
This Committee is provided for in the Employee Benefits Agreement.
Schedule 1 of the Employee Benefits Agreement of October 1, 1975 to September
30, 1976 ("the yellow book") sets out its nature and functions.
Article 2 of Schedule 1 gives the purpose of the Committee as
facilitating COmmuniCatiOnS between the Employer and Union on the subject
of Group Insurance. Although the Group Insurance benefits to be provided,
and the cost sharing arrangements between employer and employees are to
be as set out in the collective agreement, the Schedule gives a number of
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other duties to.the Committee. To paraphrase Articles 4 and 5 of the
Schedule, the Committee is to:
1) develop specifications for the public tendering of
benefits;
2) determine the manner in which the specifications will
be made available for public tendering;
3) consider and report on all tenders submitted;
4) make recommendations to the Government on the selection
of the insurance carrier or carriers to underwrite the
Group Insurance Plans;
5) review the semi-annual financial reports on the Plan;
6) review contentious claims and recommendations thereon;
and
7) meet every six months to review the financial experience
under the coverage.
The maximum size of the Committee is set in the agreement at
eight members. The Union and the Employer are entitled to equal representa-
tion on the Committee. It was testified that the parties had agreed to limit
the elected representatives to three for each side. There is no provision
about who has the'duty or power to call meetings of the Committee; testi-
mony at this hearing was that either the Employer or the Union could,
and did, do so.
There is no express provision in the Employee Benefits Agreement
covering the granting of leave to attend meetings of the Joint Insurance
Benefits Review Committee. None of the other leave provisions in that
Agreemen
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t are of use to one seeking leave for a Committee meeting. .
There is , on the other'hand, nothing in the Agreement which denies
leave to attend these meetings.
The grievor first argues that once the Employer has arranged
a meeting of this Committee - or agreed to a date suggested by the Union -
there should be no need for the employees to ask for leave to attend.
Any conflict between the J.I.B.R. Committee and the requirements of the
Ministry should be resolved in favour of the former. This Argument is
based on two notions. First is the definition in the Agreement of
"Employer" as Crown in Right of Ontario, an entity larger than the
particular Ministry. It would, notionally speaking, also include the
Civil Service Conmission, a member of whose staff was in charge of
J.I.B.R. Committee meetings. Accordingly, a conflict between two aspects
of the same Employer should, it is suggested, be resolved so as not to
cause adverse results to the employee. He should be able to go to the
meeting, and his Ministry should bear the "loss,;"
Alternatively, it was suggested that the absence of any prohibi-
tion against leave means that leave will be available. Absent some
standard clearly set out in the Agreement, applications for leave should
be assessed "fairly and reasonably" taking into account all the circumstances.
This last would make this test broader than the one in Article 25.7 of
the Working Conditions Agreement, which speaks of "operating requirements."
The grievor thus argues that the competing priorities of the same
Employer should be part of the circumstances considered, and that in light
of these and the operating requirements' of the Ministry leave should have
been granted.
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The Ministry argues that section 25.7 of the Working Conditions
Agreement applies to all leaves, even to those provided for in the Employee
Benefits Agreement. This contention rests on the fact that both the
Working Conditions and Employee Benefits Agreements are appendices to a
skeletal master agreement between the parties; rather than wholly separate
documents. There does not seem to be a need to assess this contention here,
as the language of Article 25.7 itself seems to limit its application.only
to leaves mentioned in Article 25. It states at the outset that "all
requests for leave of absence permitted in these sections" shall be sent
to the Directors of Personnel of the affected Ministries. Without a break,
and in the same paragraph, it then goes to the sentence the Employer wants
to apply: "It is understood that the Employer may withhold leaves requested
by the Union...." We think that this apparently general statement must be
limited by its context. The provision allowing leave'to Union Executive
Officers and Members of the Executive Board to conduct the internal business
affairs of the Union does not, we think, cover this situation, so as to make
section 25.7 applicable. There is no requirement that a Union nominee
to the J.I.B.R.C. be an Executive Officer or Member of the Board, and we
cannot have a situation where one rule applies to Committee Members who
are, and another to Committee Members who are not, Officers or Board Members.
We agree with the grievor's second suggestion, that absent a more
detailed direction, applications for leave must be assessed fairly and
reasonably in light of all the circumstances. We think that his first
argument is too broad: it would in theory allow him leave, for example,
even though the whole of the Lindsay District were in flames. We also
T. .
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accept the grievor's contention that leave should have been granted in
the circumstances. It had always, according to our witnesses, been
granted before. Notice of the need of leave was somewhat short, but
Mr. Gray testified that notice for meetings of this Coannittee often was,
and this had not prevented him granting leave before or after the April
19 meeting. The operating requirements of the Ministry would not have
been unduly interfered with, to use the test contended for by it: there
was no evidence that conditions on the 19th were different from those of
the 21st or 22nd, and it was not argued that three days would have been
excessive in one week even if two would not have been. Finally, it is
perhaps easier for two aspects of the same employer to co-ordinate their
efforts than to ask the employee or the Union to do this task.
Had Mr. Broderick simply followed the work now, grieve later
principle, this matter would end here. Mr. Broderick, however, went to
the meeting in spite of Mr. Gray's clear direction not to. Without the
application of some saving exception, this would constitute insubordination.
The Employer argues that it was.
Mr. Broderick argued, however, that he was within one of the
recognized exceptions to the rule that even where an order is wrong the
employee should obey it and grieve later. This exception is stated by
Brown and Beatty to arise:
. ..where a union official, acting reasonably, determines
that it is necessary to refuse to comply with an order of
his supervisor in order to attend to union matters and
avoid the infliction of irreparable harm to the employees
whom he represents. Canadian Labour Arbitration, 7:3623, p.35.
The meeting of April 19 was called to discuss matters arising
I
from the intention of the insurance carrier to raise premiums for long-
term disability and supplemental life insurance for members of the
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bargaining unit as of May 1, 1977. It was necessary to decide whether
this increase could be covered with moneys in a reserve fund, or
whether it would be necessary to raise the premiums paid by members.
At the hearing, we were told that this decision would affect from
ninety to one hundred per cent of the members of the bargaining unit of
about 45,000 people, but no information was provided concerning the
total amount at stake or the probable financial impact on individual
employees. Although not all the witnesses were clear on this point,
the weight of the evidence was to the effect that the meeting had been
called by Mr. Wilkins, the Chief Benefits Policy Officer for the Civil
Service Commission.
From the evidence, it appears as if details of this meeting
available to Mr. Broderick before April 19 were somewhat sketchy. It is
clear that he, and the President of the Union, regarded the meeting as
a very important one; the sense of importance, if not the specific
reasons for it, were clearly communicated to Mr. Gray orally before the
19th. On the facts, the issue before the Board is whether Mr. Broderick's
honest if not completely well informed beli,ef in the importance of the
meeting and his presence there is sufficient to discharge the onus on
him of bringing himself within the exception.
We do not find the evidence before us sufficient to discharge
this onus. In some circumstances, an honest conviction by a union official,
communicated to the employer, that his presence is needed will be suffi-
cient to support reliance on the exception even though the union official
is himself not sufficiently informed about the problem to outline to the
employer with precision all the interests at stake. There must be some
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leeway here to respond to emergencies, where sorting out details follows'
action; and, in this case, given that Mr. Gray had granted leave for Mr.
Broderick to attend J.I.B.R. Committee meetings in the past we have to
assume that he was basically aware of the activities of the Committee.
Here, however, the sketchiness of the information as to why this meeting
was so important is combined with other troubling factors. We were told
that the Union and the Employer each had three elected representatives
on the Committee. Evidence was not at all clear as to what the
Union representation at the April 19 meeting would have been if Mr. Brod-
crick had not been able to attend. Mr. Joseph Poitras, O.P.S.E.U.
negotiator and a Committee member, stated that another O.P.S.E.U. repre-
sentative, May Carpenter, had attended the meeting. Mr. Broderick stated
that she had missed it because of a broken ankle. Mr. Poitras stated
that Mr. Broderick had recorded some minutes of the April 19th meeting,
but Mr. Broderick did not produce them and appeared not to have referred
to them to refresh his memory about who had attended. There is no
evidence that anything was said by the Union to Mr. Broderick or by Mr.
Broderick to Mr. Gray, prior to the meeting, about whether Ms. Carpenter
could attend. This is an important point. Without Ms. Carpenter, there
would have been only one elected representative.from the Union if Mr.
Broderick had been unable to attend.
The Ministry argued that the meeting was not serious enough to
bring the exception into play because the J.I.B.R. Committee is advisory
only. This in itself is not a fatal objection. Joint consultative com-
mittees are important for the achievement of cooperation and resolution
of problems before they become serious disturbances; the fact that this
is accomplished without the power to make binding decisions does not
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detract from its value or effectiveness. Again here, however, there
are troubling gaps in the account of what the Committee was to do - and
did do - about the proposed premium increase, and what Mr. Broderick's
part in it was to be. It was stated that Mr. Broderick was needed at
the April 19 meeting because he would carry the decision of that meeting
back for discussion to the Executive Board. How this was to be done in
light of his reluctant decision not to attend the Board Meeting on
April 21 and 22 - indeed whether that decision had even been made prior
to April 19 - was not addressed by any of the witnesses. Mr. Broderick
stated that in his view the harm that would result from his absence would
have been an incomplete analysis of the premium increase problem. Given
that the O.P.S.E.U. insurance expert, and presumably other elected O.P.S.E.U.
representatives were at the meeting, this does not seem to be the strongest
ground on which the argument for his presence could be based.
Therefore, in spite of the fact that Mr. Darrow was quite adamant
with Mr. Broderick, and Mr. Broderick with Mr. Gray, that Mr. Broderick's
presence at the April 19 meeting was very important, we do not think that
enough of a case has been made here to bring Mr. Broderick within the
exception. This being so, it does not help him that his actual absence
on April 19 did not disrupt the planting activities he had scheduled.,
The question of the appropriate discipline in this case is a
difficult one. The employer argues in essence that given the possible
alternative of dismissal for insubordination, ten days' suspension
without pay is very fair, particularly since Mr. Broderick had already
had a written reprimand for troubles arising from his union activities
in Lindsay.
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We do not agree. The mechanism for granting leave for the
Joint Insurance Benefits Review Committee, and the standard upon which
thins leave can be withheld, are not clearly spelled out. Practice up
until this incident had been always to grant leave, on what seems to
be fairly short notice. The meetings are either called, or agreed to,
by the Employer, who certainly can be taken to have the resources to
coordinate with the Ministries where Committee members work. This case
may, it is hoped, demonstrate the need to clarify procedures for leave,
either by way of negotiations or in the joint consultative committee.
It would not, in our view, be appropriate to, in effect, make an example
of Mr. Broderick when his dileauna arose from looseness in the Collective
Agreement and may result in some benefit in the long run.
Accordingly, we would alter the discipline imposed Although
the Employer, in keeping with the usual practice in these matters, billed
the Union for Mr. Broderick's pay on April 19, and received reimbursement
for it from the Union, Mr. Broderick received no salary for April 19.
The Employer has acknowledged the need to return the amount should the
Board uphold its decision not to pay Mr. Broderick for the 19th. We
think that Mr. Broderick should lose his salary for the nineteenth, because
he was absent from work on what amounted to unauthorized leave. We also
think that his record should bear a. written reprimand. Although he
already has one of these, the J.I.B.R. Committee problem is so unique I
that we do not think it calls for a progression from reprimand to I
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suspension. Apart from these steps nothing more is required; the 10 day )
suspension should be expunged and his salary for those days restored. I
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Dated at Toronto this 30th day of November 1978
I concur
‘Mr. John H. Morrow Member
I concur
r. Dan Anderson Member