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HomeMy WebLinkAbout1982-0486.Grant.83-08-18ONT..RlO CROWN EMPLOYEES !r GRIEVANCE ’ W;bEMENT IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Robert S. Grant) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer S. B. Linden, Q.C. Vice Chairman J. McManus Member H. Roberts Member J. K. A. Hayes Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors J. Quinn Supervisor Staff Relations Personnel Services Ministry of Natural Resources April 8, 1983 -2- / There is substantial agreement with respect to the facts and resolution of this grievance turns on an interpretation of a section contained in the Memorandum of Understanding between the Ministry of Natural Resources and OPSEU. The particular article in question is Article 2.1 of that Memorandum of Understanding and it reads as follows: "2.1 Pilots and Regional Air Engineers will have a pre-scheduled 5 day work week during the float operation season. The hours in a day could more or less than 8 hours. If it is necessary that Pilots or Regional Air Engineers work on the sixth or seventh day or statutory holiday, they will receive time off at one and one-half times the number of hours worked with a miminum credit of 8 hours. If time off is not granted by the end of the float season, they will be paid one and one-half times their basic hourly rate for all accrued hours. The payroll for this time is to be submitted within one month after the end of the float operating season. If, however, they prefer time off and it can be granted before March 31st, of the following calendar year, then time off may be granted." The grievor, Mr. Grant, was hired by the Ministry of Natural Resources on August 12th, 1977. At all material times he was classified as a Pilot (Schedule 6) and stationed at the Kenora air base and supervised by Mr. G. Fenelon, the Regional Fire Control Co-ordinator. Effective April lst, 1981, the Ministry of Natural Resources and OPSEU signed an agreement with respect to hours of work for pilots and regional air engineers. Article 2.1 of that agreement is set out above. This agreement was renewed without change for the period from April lst, 1982 to March 31st, 1983. The article in issue, 2.1, makes provision for compensation for time worked on sixth and seventh days and statutory holidays during the float season. A float season covers the period from April 15th to November 15th of each year. It is so named because during this period of time'planes are able to land on the water, that is, float. At other periods of time the planes must land on skiis. The float season is a busy season and, therefore, the parties have negotiated this special local memorandum of understanding. AS' of June 9th, 1982, the grievor had accumulated 534 compensating hours under Article 2.1. On June 9th, Mr. Fenelon requested that all pilots, including the grievor, if at all possible, take their accumulated compensated time prior to the end of June. The grievor had taken vacation days off between June 4th and 12th. He did not respond to Mr. Fenelon's request of June 9th. On August.l2th, the grievor was requested to take off August 26, 27, 28, September 1st and 2nd as compensation days for the hours accumulated under \ Article 2.1. On August 17th, the grievor replied that the ‘, -4- suggested dates were not suitable for.him and requested the following days: February 14th to 18th and February 21st to 25th, 1983. On August 20th, Mr. Fenelon denied the griever's request and advised the grievor that the compensating days were to be taken before the end of the float season. He requested that the grievor provide him with alternate dates to be taken by the end of the float season. On August 25th, the griever submitted a grievance, claiming a violation of Article 2.1. The grievance states as follows: "I grieve this as per Article 2 of Memorandum of Understanding re float operating season. I am not being permitted to take time off in compensation for scheduled days off worked at a time more suitable to my interests." The settlement required by the grievor was "that I be permitted to take time off at a time more suitable to me". On August 26th, 1982, Mr. Fenelon advised the griever that he was to take off September 3, 4, 5, 9, 10 and 11 as compensating leave. The grievor took those days off but without prejudice to his grievance. All other hours accumulated by the griever for hours worked during the float season were scheduled and taken off prior to November 15th, 1982. All i. .: -5- hours accumulated by other pilots in the region for hours worked during the float season were scheduled and taken off prior to November 15th. In January 1983, the griever requested and was granted vacation for the period from February 16th to March 2nd, 1982. The union's position is that the lieu days if they are to be taken before the end of the float season, must be done on agreement of both and cannot be scheduled unilaterally by management. In the alternative, the union's position is that if management does have the right to do it unilaterally, then they have to do the scheduling reasonably. Mr. Gordon Fenelon testified at the hear~ing. The grievor, Mr. Grant reports to him. When asked why he wanted the grievor to take ~the time off, before the end of June he replied that, "we weren't too busy and I wanted to get that time used up". "I expected that we might get busy later on". He said that Mr. Grant was not ordered to take the time off, he was simply told, "we would like you to take these days off". When Mr. Grant requested days in February, Mr. Fenelon refused the request. He explained that they were short of pilots and they expected that situation to last for some time. He was concerned about the lack of funds to pay for overtime. Six pilots were -6- doing the work of seven and so a lot of overtime was required. When asked why he assigned the days that he did, he answered, "this accommodated others in the schedule and worked in with the long week-end". Furthermore, it was not unusual for him to deny requests for days off during busy periods,. On cross-examination, Mr. Fenelon explained that during the float.season pilots have scheduled days off. Mr. Grant's were Wednesday and Thursday. At June 9th, Mr. Grant had accumulated 53% hours of lieu time. Lieu time accumulates at time and one-half. Accordingly, the grievor worked about four extra days during that period in order to accumulate that much lieu time. He agreed that in order to accumulate that he would have had to work his scheduled days off and that would affect his family life and he knew that Mr. Grant had a 9 year old daughter. He explained that the float season was busy because there were fires during that period.. When Mr. Grant asked for days off in February it was only August. .That was six months in the future and Mr. Fenelon stated that he responded in the negative for a number of reasons. One reason was financial. He was concerned that someone else would have to be paid overtime. In retrospect, the days that Mr. Grant had asked for were not busy and they could have. been granted. Mr. Fenelon was upset about the vacancy in a pilot's position that had remained unfilled in August when Mr. Grant's request was made. Mr. Fenelon did snot agree that February was a slack -7- month. He did acknowledge that Mr. Grant took the days off under protest, without prejudice to his grievance. The union made a two-fold argument. 1. Management cannot unilaterally schedule the lieu or compensating days off. It can only schedule the days where the employer and the employee agree to them. If agreement cannot be reached by November 15th, then you must consider the latter part of the clause. Counsel submitted that lieu time is different than vacation time. Lieu days compensate for benefits that have already been agreed upon but they are deferred because of the nature of the employer's business. Every employee is given two days off, in this case, Wednesday and Thursday. However, during the float season, the employer asks the employee to suspend that or defer it to a later time. What Article 2.1 does is impose a restriction on the employee's rights and it should be construed strictly.. The employee's right to have two days off is being restricted. Counsel emphasized that the lieu days be treated differently than vacation days. An employee has the right to two days off in succession but this right is being restricted by Article 2.1. Accordingly, if it is necessary for an employee to work on a sixth or seventh day, he will get time and one-half or time off. If the employer says, you can have two days off -8- if makes sense that the employee should have a right to agree on the days. The word "granted" contemplates that there will be a request. An employer cannot simply unilaterally schedule the days. The term "granted" implies some sort of accommodation. 2. Even if management has the unilateral right to schedule these days off, it is a right that must be exercised reasonably. In fact, here, the employer has created a shield behind which it hides. That is, not filling the vacancy in the pilot's position. Counsel submitted that this was not a valid consideration in denying a request that is made months in advance. For the employer to take the position that all days off were to be taken off by November 15th. and they would not accommodate anyone, is simply not reasonable. For that reason alone, Counsel submitted that the grievance should be upheld. The remedy requested in this case is that the griever be allowed to take time off at a time more suitable to himself. The employer's position is that there has been no violation of the memordndum of understanding. The employer argued that Mr. Grant got all that he was entitled to. Article 2.1 does not say that it is to be suitable to the employee, therefore, the remedy requested is inappropriate. Counsel read Article 2.1 and submitted that this article creates a scheme and the -9- scheme describes three distinct time periods. 1. During the float period from April 15th to November 15th. 2. At the end of the float season, November 15th. 3. At the end of the float to March 31st of the following year. The employer's position is that the employee has different entitlements at different points in time. For example, the first period, that is during the float season between April~l5th - November 15th, the employee will receive time off. Entitlement is limited to float season because of the next sentence. If it is not granted by the end of float season then the second period of time comes into play, that is, at the end of the float season. The language states if time is not granted, they will be paid at a time and one-half basis rate. Therefore, at the end of the float season, the employee's rights have changed. They are entitled at this point to receive pay. The third period of time - is created by the last sentence, which is the ,end of the float season to March 31st of the following year: If the employee prefers time off, and if it can be granted, then it may be granted. In the employer's position, the . ?-- . e - 10 .- language in this article is clear. The scheme or the sequence must be followed and at a particular point in time, the employee's rights change from rights to receive time off to a right to receive payment. At the point an employee expresses a preference for time off, this triggers the last sentence. Time off is at the discretion of the employer. Only at that point does an employee have the right to express a preference. Mr. Grant received time off during the float season, therefore, at the end of the float season, Mr. Grant had received all of his entitlement. Counsel submitted that the Memorandum of Understanding does not restrict management's rights to schedule during the float season. He submitted that the Memorandum of Understanding does not speak to mutual agreement between the parties. It states that an employee will receive and they will be paid, etc., the whole language gives management the right to do what it did. .He referred to a number of specific authorities and emphasized that nothing in the Memorandum of Understanding fetters or restricts the employer's right to do what it did. He conceded that management may try to accommodate the employee's wishes but they do not have to. Counsel submitted that nothing in this case was done in bad faith and, therefore, it was reasonable. Accordingly, even if the test of reasonableness applies, the test was met by management. c--r%* - 11 - In reply, union Counsel pointed out that the employer did not make a distinction between vacation time, leave of absence and lieu time. He emphasized that these are different and should be treated differently. For example, an employee does not have a right to leave time, but lieu time is different. In his view, an employee should have a right to agree to compensating days otherwise, they are not compensating days, if he is obliged to take them off when he is told to. Respecting the test of reasonableness, union Counsel submitted that the employer took into account an irrelevant fact, that is, the shortage of one pilot and, therefore, they were not acting reasonably. The Board finds that the employer's scheduling of com- pensating time in this case was done reasonably. Furthermore, the employer had the right and the obligation to schedule this time off as it did. It is our view that they are able to do this unilaterally provided they do it reasonably. In this case, they did. In denying the grievor's request for time off in February, Mr. Fenelon considered the following factors: ' 1. Anticipated heavy workload for January and February 1983. 2. The fact that he had one pilot vacancy ,that would not be filled by February. P F--=---G - 12 - 3. Anticipation of additional time off accumulated by pilots under Article 1 which would also have to be scheduled. 4. A desire to ensure that time off was taken rather than payment at the end of the period due to budget constraints. It is our view, that these are all legitimate factors to be considered. Furthermore, the grievor did not indicate that there were any special considerations that should be taken into account by Mr. Fenelon in considering his request. The grievor did not respond to Mr. Fenelon's request of -August 20th. It is our view that the employer had a right to do what it did in this case and that it acted reasonably. Therefore, the grievance is dismissed. DATED AT Toronto, Ontario this 18th day of August, 1983. J. McManus Member -23 H. Roberts Member