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HomeMy WebLinkAbout1982-0614.Agius et al.84-03-06Grievers IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Doris Agius, et al) and The Crown in Right of Ontario (Ministry of Health) Employer Before: P.M. Draper Vice Chairman F. Taylor Member D.B. Middleton Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: P. Mooney Staff Relations Officer Staff Relations Division Civil Service Commission Hearings: October 14, 1983 November 21, 1983 -2- DECISION There are seventeen individual grievances before the Board. The Grievers are sixteen food service helpers and one food service clerk employed in the Food Service Department of the Whitby Psychiatric Hospital. By agreement of the parties, the grievances of two of the Grievers, Patricia Wry and Patricia Black, are to be deemed to be representative of all the grievances which are, in any event, identically worded. The Grievers were absent from work on Tuesday, September 21, 1982. They grieve that they were unjustly denied leave of absence on that date and request that the day’s pay withheld from them be restored and that the letter of reprimand issued to each of them be removed from the Employer’s records. It is to be noted that the Grievers are not alleged to have engaged in a concerted stoppage of work, but rather to have been absent from work without authorization. A protest rally was planned by OPSEU for 1:00 p.m. on September 21s.t at Queen’s Park. One of the handbills circulated to the employees of the hospital by OPSEU states: ‘If you come to Tuesday’s big demnr&ration at Queen’s Park, you may lose a day’s pay.” Another states: “Your Union is planning a massive protest rally on the grounds of the Legislature at 1:00 p.m. Every OPSEU member is asked to take time off work and attend thii rally. Many members can arrange leave with pay. Others may have to give up a day’s pay; it’s surely worth it to help preserve your right to collective bargaining.” -3- It is submitted for the Employer that the approval of vacation leave is an exercise of an exclusive management function under Section 18(l) of the Crown Employees Collective Bargaining Act and thus is not open to challenge through the grievance procedure or subject to arbitration by this Board. We do not believe that is a tenable position. The collective agreement is not silent on the issue of approvals but, in fact, provides for them in Article 46.7. The issue therefore relates to the interpretation, application, administration or alleged contravention of the collective agreement. See, in this regard, Roy, 89/83. Lorna Frank is Administrator of the Food Service Department of the hospital. She testified that the department prepares and serves about 1700 full-course meals and up to 100 box lunches on weekdays. Early on Friday, September 17, 1982, she was given handbills announcing the protest rally. During the morning she and her assistant met with the two department stewards, Patricia Wry and Bernard Couke, who wished to discuss time,off for employees to attend the protest rally on the following Tuesday. Because two employees were then on vacation - the number normally scheduled to tak; vacations at that time of year - she said she could not approve any time off. On Monday, September 20th, she received from Wry a list of names of employees (including the Grievers) who were requesting vacation leave for the next day. Also on September 20th, on instructions, she met the stewards again to try to arrange for the attendance of a sufficient number of employees “to keep the department running” on the following day. At the meeting she said she would require -4- fifty percent of the regular full-time staff scheduled to work on September 21st. This would come to sixteen food service helpers, one food service clerk and two cooks. Fred Upshaw, President of the OPSEU local of which the hospital employees are members, then met with her. He suggested that the department could run using part-time staff, but she told him she would not call in part-time employees who were on their regular day off. Upshaw then asked if it would,be acceptable if the staff worked until IO:30 a.m. and she said that it would. He returned later to tell her that the employees would not agree. It was arranged that of the four cooks scheduled to work on September 21st, one would work the full shift of seven and one-quarter hours and a second would work from the start of the shift at 500 a.m. to lo:30 a.m. On the morning of September 21s.t all the Crievors telephoned to say they would not be at work that day and none, in fact, reported for work. She put into effect a contingency operating plan under which supervisors, dietitians, and administrative nursing staff members were recruited; the cafeteria was closed except for vending machines; service to other buildings on the hospital grounds was curtailed; and simpler food was substituted for that on regular menus, except for those of patients with special needs. On September 30th she sent letters of reprimand to all the Grievors. Fred Upshaw is President of OPSEU Local 331. He testified that he wished to avoid having employees report sick on September 21st. His first meeting with Frank was on September 20th. In his opinion, the operation of the department would not be disrupted if part -time employees were called in and a contingency plan was followed. Frank told him “it -5- would be nice” if fifty percent of the full-time employees came in on September 21st. He asked the employees for volunteers to work and none responded, but he arranged for two of the cooks to work. He understood that all the Grievers would be given a day of vacation leave on September 21st and felt he had no reason to think leave would not be approved, although he concedes that the Grievors received no reply to their request. The only difficulty he experienced in arranging leave for employees of the hospital on September 21st was in the Food Service Department. Patricia Wry, one of the Grievors, is a food service helper. She testified that on Friday, September 17, 1982, she told Frank that a “group”, including herself, would be absent on Tuesday, September 21st, so that she (Frank) “could make the necessary arrangements”. Her own decision was personal and final. Her request for vacation leave was never approved. She intended to be absent on September 21st even if she did not know whether her request for leave had been granted. Frank asked her to telephone on September 21st if she was going to be absent on that date, which she did. Bernard Couke is a cook employed in the Food Service Department of the hospital. He testified that he had made no written request for vacation leave on September 21st, and had made known his intention to be absent on that day to attend the protest rally. Following the request made by Frank that fifty percent of the full-time staff work on September 21st, he canvassed the cooks individually, two of whom agreed -6- to work. He believed that acceptance of this arrangement by the Employer meant approval of his absence on September 21st. He received a letter of reprimand, which he grieved, and following the second stage grievance meeting, the Employer withdrew the letter and recorded September 21st as a day of vacation leave, acknowledging that the cooks had provided the coverage requested by Frank. It is argued on behalf of the Grievers that the request for leave made by them may equally well have been made under Article 29 (Leave without Pay) or Article 30 (Leave-Special) as under Article 46 (Vacations and Vacation Credits). We are satisfied, on the evidence, that the request was one for vacation leave. We find further that approval of vacation leave was not given to the Grievers. There remains for determination the question whether or not the Employer’s denial of the request was arbitrary or unreasonable. There is ample authority for the proposition that employers are entitled to require the regular attendance of employees at work unless authorization has been obtained, or a legitimate reason exists, for absence. It is equally clear that under the collective agreement, the Grievers were required to obtain the Employer’s approval of vacation leave. The evidence leads us to conclude that the Grievers intended to absent themselves from work on September 21st, 1982, in any event, but that they hoped to be able to do so without penalty. They cannot reasonably have expected to dictate the terms on which their request for -7- vacation leave would be approved. Yet they showed little disposition to reach an accommodation with the Employer that would lead to that approval. In our opinion, the Employer’s judgement that the attendance of fifty percent of the employees scheduled to work (in combination with the implementation of a contingency operating plan) was required to ensure an acceptable level of service, was based on legitimate operating considerations. The Employer was willing to approve requests for vacation leave provided that the required attendance could thereby be achieved. We do not regard it as arbitrary or unreasonable of the Employer to withhold approval when that assurance was not forthcoming. As for the fact that the Food Service Department was the only department of the hospital in’which no arrangement for vacation leave was worked out, without evidence as to the staffing and operating requirements of the other departments or the respective arrangements arrived at, there is no basis on which to conclude that the action of the Food Service Department was discriminatory. Finally, we do not consider that the Employer’s treatments of the Grievers was discriminatory relative’ to that accorded to the cooks who, having reached agreement with the Employer for the staffing of their area, were entitled to the promised vacation leave. -a- We find that on September 21, 1982, the Grievers were absent from work without authorization or legitimate reason and were therefore subject to discipline. On the question of the disciplinary penalty imposed, the withholding of pay for a day on which the Grievers were so absent was not disciplinary in nature. The penalty imposed was a letter of reprimand. Such a letter is generally considered to be a minimal disciplinary penalty and we will not disturb that penalty here. The grievances are dismissed. Dated at Toronto, Ontario this 6th day of March, 1984. P.M. Draper Vice Chairman “I dissent” F. Taylor Member D.B. Middleton Member /Ibw