HomeMy WebLinkAbout1981-0185.Tremblay.82-03-23185/ai
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Mr. Douglas Tremblay)
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
Before:
R. L. Verity, Q.C. : ;;;;;Fhairman
H. Roberts
K. O'Neil - Member
For the Grievor:
M. Mercer-DeSantis
Grievance/Classification Officer
Ontario Public Service Employees Union
For the Employer:
J. F. Benedict, Manager
Staff Relations, Personnel Branch
Ministry of Correctional Services
Hearing:
January 25, 1982
February 4, 1982
Grievor
Employer
,
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?: W A B D
The Grievor, Douglas Tremblay, alleges a violaticn by
the Employer of Article 19.4 of the relevant Collective Agree?.ent
in its failure to grant a requested statutory lieu day to the
Grievor on Saturday, April 25th, 1981. Specifically, this Grievance
involves a dispute between the Parties on the interpretation of .-.
Article 19.4 of the Collective Agreement. The Linion requests that
a declaratory order be issued by the Board to the effect that under
Article 19.4,' in the event of the failure to achieve mutual agreement,
an Employee shall have the sole discretion to schedule lieu days in
conjunction with his vacation leave or regular day(s) off.
The material facts are not in dispute. The Griever is
classified as a Correctional Officer 2 at the Waterloo Detention
Centre,and in that capacity he works on a rotating shift basis.
The Grievor has been employed at the Waterloo Centre for some
three years, and has been with the Ministry for approximately
nine years.
The evidence indicates that each Correctional Officer
works seven to eight consecutive days in one of three rctating
.shifts (Day Shift -- 7:00 a.m. to 3:00 p.m.: Afternoon Shift --
3:00 p.m. to 11:OO p.m.: Xight Shift.-- 11:OO p.m. to 7:00 a.m.).
After seven or eight consecutive days on one shift, the Officer
would be entitled to two days off before rotating shifts, and
alternatively four days off according to the scheduling.
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Douglas Tremblay had been required to Xork cn Sta;.:zor;r
holidays, and as of February of 1981 he had seven statutory hcii?.a:JS
accumulated to his credit.
On February Sth, the Grievor submitted a request in
writing for days'off work, namely Friday, A-pril 24th and Saturday,
April 25th, to be taken as "lieu days". On February lOth, he was
advised in writing that April 24th had been granted, but April 25th
was not acceptable. Until this point in'time, there was no oral
communication between the Parties. Subsequently, on February 12th,
the Grievor spoke with Sergeant E. C. Halley who was in charge of
staff scheduling and a Mr. Mowle, the Shift Supervisor, for the
purposes of reiterating his request. The Grievor stated the reason
for his request; namely his desire to.take lieu days to participate
in a bowling tournament and banquet on the days in question. Se
was advised that there were no casual staff avai'lable for April 25th
and was shown the projected staff schedule for the week of April
20th.
By way of explanation, casual staff are staff on contract ,
who normally work up to 24 hours per week and who are classified as
Correctional Officers 1. The casual staff are apparently tailed in
by the Employer as needed and when available. Five of these "casuals"
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were available on weekends only, four were a-Jailable if not in
school, and two were available virtually any time. fie policy
of the Waterloo Correctional Centre was to employ two and
occasionally three "casuals" on a shift, and the Superintendent
had issued the order to employ as many experienced officers
(Correctional Officer 2 category) as was possible except in
extenuating circumstances.
At the first meeting with the Grievor on February 12th,
the Grievor expressed-the view that he believed that "casuals" were
available. Mr. Xolley advised the Grievor to exchange shifts with
another Employee which would resolve the Grievor's request.
A second meeting was held between the Grievor and Xr.
-Halley in the presenc~e of the Union Representative,Steven.Armstrong,
on February 17th. At that meeting, the Grievor's evidence was to
the effect that he relied upon the wording of Article 19.4 of the
Collective Agreement to justify the request to take April 25th as a
"lieu day". The Grievor was again advised that no "casuals" were
available for April 25th and accordingly Management's positicn
remained unchanged. The Grievance herein was filed on February
17th.at the conclusion of the meeting between the Parties.
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The wording of the Grievance (Sxhibit 1) is as follows:
"Nr. Tremblay was denied stat-days as requested
Fri. April 24 and Saturday April 25, 1981."
_-. The settlement requested was in the following wording,:
"Compliance of Article 19.4 of the Collective Agreement to grant stat-days in conjunction
with regular days off."
A detailed response to'the Grievance (Exhibit 3) was
prepared by Mr. Halley and dated February 23rd, which readsin part:
“(1) (b) . . . ..After discussion with the Deputy Superintendent, Mr. G. York, Friday,
April 24th, 1981 was approved as the
proposed schedule for that period indicated there should be sufficient staff availabie
to permit this. As far as Saturday, April
25th, 1981, is concerned, it was indicated that no casual officers were available to
cover the position should you be granted that day as a Stat. day. The Deputy
Superintendent has previously indicated
that paying Stat. days incurring overtime should be avoided unless there are extenuating
circumstances supporting the need for a Stat. day.
(2) Under the-circumstances, it was suggested to vcu that you might seek to arrange a change of shifts with another officer to give'you April 25th off, which you declined to do.
(31
(4)
The situation has since been discussed with
the Deputy Superintendent who states that tc expect a firm commitment for a Stat. day so
far in advance, is unreasonable. It is not possible to predict what the needs of the
Institution will be, or if the schedule will
be exactly the same at that time. It should be pointed out that one position on the
proposed schedule for the 3.- 11 shift on
April 25th, must be filled due to an officer being on vacation for that period.
. . . ..Nevertheless. I have discussed this matter
with the Deputy Superintendent who states that he still views the expectation of a firm commitment
at this time as unreasonable. He also suggests re-applying at a date closer to the requested
time when it may be possible to make a commitment."
"Article 47 - Holidays
47.1 An employee shall be entitled to the foil
holidays each year:
New Year's Day
Easter Monday Dominion Day
Labour Day Remembrance Day
Boxing Day
Good Friday
Victoria Day Civic Holiday Thanksgiving Day
Christnas Day
Subsequent to the February 23rd response of.the Hmployer,
the'Grievor arranged a shift exchange in early March with a Mr.
Zaniewski, also a Correctional Officer 2. That shift exchange was
approved by Management. Accordingly, Mr. Zaniewski worked the
Grievor's shift on April 25th and the Grievor worked .Mr. Zaniews!<i's
shift on October 3rd;
The relevant provisions of the Collective Agreement are:
owing
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Any special Holiday as proclaimed by the
Governor-General or Lieutenant Governor."
"Article 19 - Holiday Payment
19.1
19.2
'19.3
19.4
19.5
Where an employee works on a holiday
included under Article 47, Holidays,
he shall be paid at the rate of time and one-half (l-1/2) for all hours
worked with a minimum credit of seven
and one-quarter (7-l/4) or eight (8) hours, as applicable.
In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7-l/4) or
eight (8) hours pay as applicable at his basic hourly rate or compensating leave
of seven and~one-quarter (7-l/4) or eight
(8) hours as applicable, provided the employee opts for compensating leave prior to the holiday.'
When a holiday included under Article 47,
Polidays, coincides with an employees' scheduled day off and he does not work on
that day, the employee shall be entitled
to receive another day off."
Any compensating leave accumulated under
sections 19.2 and 19.3 may be taken off at
a time mutually agreed upon. Failing aaree-
ment, such time off may be taken in conjunction with the employee's vacation leave or regular
day(s) off.
Any, compensating leave accumulated under
sections 19.2 and 19.3 in a calendar year which is not used before Xarch 31 of the
following year shall be paid at the rate it was earned. Effective Narch 1, 1978, the March 31 date may be extended by agreement
of the local or ministry level.
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On behalf of the Union, Ils. Xercer-DeSantis arg'~eZ
that Article 47 sets out 11 Statutory Holidays each year, and
that entitlement thereto is an automatic, unfettered right of
every.classified Employee. Articles 19.1, 19.2 and 19.3 qz-cvides
.the formula for payment and accumulation. Under Article 19, the
Employee can receive compensation in the form of money or the
Employee can elect to have the day added to the Statutory lieu
day accumulation to be either accumulated under 19.5 or taken off
at some other point in time as a lieu day under 19.4. The Union's
argument is that under 19.4, the Employee,has the right to request
the lieu day for compensating leave accumulated under 19.2 and 19.3
subject to a mutual agreement between the Parties. In the absence
of a mutual agreement, the discretion reverts back to the Employee
to determine whether he will take time off in conjunction with his
vacation or regular days off (19.4) or to allow them to accumulate
to his credit and to be cashed out at the end of the calendar year
under 19.5. In the absence of a mutual agreement, it was the Union's
position that the Enployee would have the unfettered right to Zeter-
mine the scheduling'of the lieu day or days ?rc.$iding that these days
are taken in conjunction with the Employee's vacation or' regular z.ays
off. In essence it was the Union's position that in the absence of
a mutual agreemen't, the Employer's denial was improper and that the
Employee had the sole discretion in scheduling the lieu day in
accordance with the wording of Article 19.4.
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The Employer's argument presented by Xr. 3enedicc-
was twofold. Firstly, it was alleged that the Grievor had not
been denied the lieu day in question, but was given alternatives
to consider including exchanging shifts with a fellow Employee,
or re-applying,for permission at a later date.. Specifically,
it was Management's view tha t the Grievor's actions in arranging
a shift exchange with Mr. .Eaniewski foreclosed the issue and that
the subject matter of the Grievance did not in fact occur. Secondly
and alternatively, it was argued that if the Board found as a fact
that the Employee was denied April 25th as a lieu day, that it was
,Xanagement's right to do so and that the decision to deny was
~exercised reasonably, in good faith, non-arbitrarily, and without
discrimination. In support of its contention, Mr. Benedict cited
the Management Right Provision in the Crown Employees Collective
Bargaining Act, R.S.O. 1980, and in particular Section 18(l):
"18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right
to determine,
(a) employment, appointment, complement, organization, assignment, discipline,
dismissal, suspension, work methods and procedures, kinds and locations
of equipment and classification of positions: and...........
and such matters will not be the subject of collective bargaining nor ccme witkin the
jurisdiction of a beard."
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The Employer argued that Management has the excl.;si-re
right to schedule working and non-working days, except Statutory
Holidays, unless specifically restrained by the Collective Agreement.
Mr. Benedict argued that the second sentence of -Article 19.4 does
place a restraint on Management's right to schedule lieu da'ys. z'iilir.q
agreement between the Parties, the discretion remains with Management
as evidenced by the use of the word "may" in the second sentence of
Article 19.4. Therefore, it was argued that if Xanagement decided
to schedule an Employee's lieu days, Management may schedule them
in conjunction with the Employee's regular days off or vacation.
In the event that Management decided, for whatever the reason, not to
schedule them, Article 19.5 would come into effect, and the Employee
would have those days banked to his credit. On this rationale, .there
would be no loss to the Employee per se, except perhaps the inconvenience
factor. It was argued that Management's decision had been "reasonable"
in the circumstances. Management had a legitimate interest in con-
trolling its costs, that the normal procedures for scheduling lieu
days were traditionally Tuesdays and Fridays,that Management could
not be expected to make a decision two and a half months i.l ad,.Fance ,
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and that Management had advised the Employee to apply again a=
a later date or alternatively to arrange a shift exchange.
Having considered the matter carefully, we have
concluded that the preferable interpretati~of title 19.4
is that advanced by Ms. Mercer-DeSantis. In a review of the
evidence in its totality, we are of the view that neither ?arty
acted harshly or unreasonably in the circumstances. Therefore,
any consideration of the reasonableness of Management's actions
were not relevant. See the Ontario Divisional Court decision of
Mr. Justice Reid in Re Municipality of MetroRolitan‘Toronto and
Toronto Civic Employees' Union, Local 43, et al 62 D.L.R. (3d)
P. 53 at p. 56.
The issue herein is simp1y.a matter of interpretation
of the wording of Article 1914.
The evidence indicates that Management has developed
certain guidelines for the implementation of the wording of th.e
Article which is unilateral in nature.and which appears not to be
well understood by the Employees. For example, the Employer's
evidence was that lieu days are sometimes granted and scmetimes
refused, and when granted are normally taken on a Tuesday and
Friday. The evidence of the Grievor indicates tinat zhis g.~ideli~-e
was not understood by him.
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It appears to us that the wording of the first sentence
of Article 19.4 indicates clearly that Nanagement doesn't ha-/e
the unfettered discretion in the scheduling of lieu days. The
first sentence of that Article speaks of a mutual agreement. IC
Management's interpretation is correct, then the last sentence of
19.4 would be virtually meaningless. Management is alleging that
in the event of failure to reach mutual agreement, Management would
have total discretion to resort to the provisions of Article 19.5.
In our view, the use of the word "may" in the second
sentence of 19.4 means that neither Management nor the Employee
is bound by the formula of lieu day time. The discretion th.en reverts
to the Employee to select a lieu day contiguous with the Zmpioyee's
vacation or days off (either immediately before or immediately after
either date) or alternatively to bank the,lieu day pursuant to +;ne
provisions of Article 19.5.
The ~@oyer's evidence is that there was a contingency
plan available in the event of illness of emergency. The contizqency
plan was to'bay classified staff overtime nay or alternatively to
employ "casuals". It is our opinion that the Employer's contingency
plan should also apply to the scheduling of lieu&ys where Xutzai
agreement cannot be achieved under 19.4. !:anaqeaent's relcctacce tz
do so, in this instance, is as a direct result of a I!inistry ?.irecti:-e
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to avoid payment of overtime, as ::lell as a ccncern for -_he prcper
balancing of casual and classified staff. Xhile it may be said
that this rationale has merit, in our view it has no relevance
to the interpretation of Article 19.4
In addition, it should be stated that Management's .-
response dated February 23rd, 1981 did in fact constitute a
denial of the Employee's request for a lieu day for April 25th.
The Grievor accepted Management's proposal to arrange a shift
exchange which in our view had the effect of mitigating the
damage, which fact we find to be to the Grievor's credit. Pie
do not find that the Grievor's action foreclosed his option to
proceed with the Grievance in the sense of creating a non-event,
and accordingly should not be held against him.
.~ ~:; In the circumstances, we believe that a declaratory order
would be of assistance to the Parties in the future. Therefore, we
make the following Order:
Failing mutual agreement pursuant to Article 19.4 with regard to the scheduling of lieu
time accumulated under Article 19.2 and 19.3, an Employee may at his option take such time
accumulated,
in conjunction with his vacation leave or regular days off, such lieu time
shall be at the sole discretion of the Employee. In the event that the Employee fails to exercise his discretion in selecting lieu day or days, and the scheduling thereof, within a reasonabie time after the failure to reach a mutual aGreeTent under 19.4, the provisions of Article 19.5 shall
be deemed to apply.
The Board would urge the Parties to reach a rut-a1
agreement on what constitutes a "reasonable time" wi:hin .dhich
an Employee may exercise his option and schedule iieu day(s).
In the circumstances, the Grievor's request for ccm-
pensation for the four hours of overtime he was required tc
perform on-October 3rd, 1981 shall be denied.
We shall remain seized of the issue in the event that
there is any difficulty between the Parties in the interp'retation
or implementation of this Award.
DATED at Brantford, Ontario, this 23rd day of Ilarch,
A.D., 1982.
R. L. Verity, Q.C. - ViceX?wzn
(?artial Dissent Attached)
H. P&e.rts - ?kker
(Partial) DISSENT
ia5iai - D. Tremblay (OPSEU) - Ministry of Correctional Services
I am in agreement with the denial of the Grievor's request
for compensation of four hours' pay for work he was required to perform
on October 3rd. 1981.
I regret however, that I cannot.agree with the making of the
declaratory order with regard to Article 19.4, as set out in the
foregoing award.
1. In his argument, counsel for the Ministry submitted that the
employer had the unrestricted right to schedule work and assigned shift
hours under Section 18(l) of the crown bmployees Collective Balgdinin$?
A&, the pertinent parts of which read as follows -
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18-(l) "Every collective agreement shall be deemed to
provide that it is the exclusive function of the ,' employer to manage.which function, without limiting
the generality of the foregoing, includes the right
to determine,
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work
methods and procedures, kinds and locations Of equip-
ment and classifications of positions; and
(bl merit system, training and development, appraisal
and superannuation, the governing principles of /
which are subject to review by the empioyer with
the bargaining agent,
and such matters will not be the subject of collective Sargain-
ing nor come within the jurisdiction of a board.
This is, in my view, an acceptable premise, and accordingly
the declaratory order in the award which gives the employee sole discretion
as to when he may schedule time off, exceeds the authority of this Board.
2. The basic function and responsibility of this Board is to determine
whether or not there had been a breach of the collective agreement where
the grievor in this case was concerned. Since he achieved the questioned
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10.3, which provides for change bf shift'with another employee, no
breach of the collective agreement has been established.
Rather, the Union used this hearing to ask the Board for
relief in all such future requests by making a declaratory order that,
failing mutual agreement under Article 19.4, for the scheduling of lieu
time accumulated under Articles 19.2 and 19.3, the employee should have
sole discretion as to whether this lieu time should be taken in con-
junction with his vacation leave or regular days off.
Lacking a clear breach of the collective agreement, it would seem
that even if the wording of Article 19.4 is not perfect, the parties
cannot contract out of Section 18(1)(a) of the Crown Employees Collective
Bargaining Act, which is detailed above.
There having been no fault found with the reasonableness of the
action taken by the employer, then the making of a declaratory order of
the nature suggested, could be construed as amending or adding language
to the collective agreement, which would be inappropriate and beyond
the jurisdiction of this Board.
3. In addition, examination of Article lg.4 of the collective
agreement.which reads -
19.4 wAny compensating leave accumulated under sections - 19.2 and 19.3 may be taken off at a time mutually
agreed upon. Failing agreement, such time may be
taken in conjunction with the employee's vacation
leave or regular day(s) off." -
leads me to a different interpretation than that reached in the fore-
going award.
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The operative word in each sentence of 19.4 is "x".
In her argument, counsel for the Union quoted a number of
articles from the collective agreement, (among them Article 47 - Holidays,
Article 48 - Bereavement Leave and Article 49 - Maternity Leave) as
examples wherein, under the conditions noted, the employee had "unfettered"
rights to the provision allowed. It was suggested that this same "unfettered"
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right applied also to Article 19.4.
The operative wordy in each of the other articles quoted above
as parallels to 19.4 is "sha;l".
Websters Home and Office Dictionery defines both these operative
words as follows -
"May" - expressing possibility, permission, uncertainty, hope
"shall" - obligation, command, condition or intention
In my view, an employee who has accumulated a lieu day or
days under Articles 19.2 or 19.3 has three options open as to when he
may take tine off for that lieu day or days, all of which require the
agreement of the employer.
Under 19.4 he %E&', if the employer agrees, take lieu time
off on a day of his choice; or, in conjunction with his vacation leave;
or, in conjunction with regular day(s) off.
Another option open to him, contractually, under Article 10.3 -
"A shift may be changed without any premium or penalty, if agreed upon
between the employee and the ministry" is one that by the evidence given
was used frequently to resolve the matter of lieu days and was in fact,
exercised by the Grievor in this case.
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Evidence was given that requests under 10.3 are allobied by
the employer without question since the required staff levels on any
given shift are maintained by this action.
To allow a number of employees sole discretion as to when
they can take time off as lieu days, if all chose the same day(s) as
they would have the right to do under the declaratory order, could make it
very difficult if not impossible for the employer to maintain the required
level of staff on such days.
It is my belief that, failing agreement being reached under
either sentence of 19.4 as to when a lieu day(s) may be taken, and
failing a request from the employee for a shift change under 10.3 to
achieve his desired lieu time off, then Article 19.5, which is detailed
in the body of the award, takes over to ensure that value for the lieu
time earned will still be forthcoming to the employee concerned.
From all of the above it is my belief that the declaratory
order made in the foregoing award should not have been granted.
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H. Roberts