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HomeMy WebLinkAbout1983-0487.Jackson.84-04-19IN 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 (Thbmas Jackson)~ Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. J. Roberts Vice Chairman M., Watters Member G. Walker Member J. Miko Grievance Officer Ontario Public Service Employees Union J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services March 13, 1984 1. The issue in this arbitration involves interpretation and application of' Article 54.1 of the collective agreement, which reads as follows: 54.1 A Deputy Minister or his designeemay grant an employee leave-of-absence with pay for not more than~three (3) days in a year upon special or compassionate grounds. The Union contended that the Employer's exercise of its discretion under ,this Article, was reviewable for reasonableness and that the Employer acted unreasonably when it refused ~to' grant 'the grievor a one day leave with pay pursuant"to,.this -provision to attend the funeral of his wife's grandmother. The Employer contended that this Board lacked jurisdiction to 'review the exercise of the Employer's discretion under Article 54:1, and submitted that, in any event, the discretion was exercised in a reasonable manner. For reasons which follow, we conclude that we do have jurisdiction to review the matter; however, upon consideration, of the merits we find,that the grievance must be dismissed. The grievor has been a Correctional Officer at the Niagara Detention Centre since August 29, 1977. On June 9, 1983, he received word that his wife's grandmother had passed away and that the funeral was set for Saturday,. Zune 3. 11. The grievor was requested to act as 'one of the pall bearers. He agreed. Because he was scheduled to work on that Saturday, the, grievor thereupon telephoned Mr.. C.W. ,Hill, the Deputy Superintendent of the Detention Centre, and requested to be granted compassionate leave. Mr. Hill discouraged the grievor's request, advising him that in the past other Correctional Officers. in .similar circumstances had been required to use one of their holiday credits to cover the day' off. He added that in the circumstances there would .~. .be no problem in the grievor getting 'the day off. ,The .-~ - .' : only problem was in getting the day ~off.with pay. -~_::.. The grievor was! not .satisfied with this response. When' he reported for works on the :afternoon of Friday,, June 10, he requested to speak to Mr. J. Hildebrandt, the .Superintendent of .,the De~t,en,tion Centre. In response to .~ .~ this request, a meeting was held. with the .latter on that afternoon. In this .meeting, the grievor again asked for a leave of absence with pay under the compassionate le.ave provisions of Article 54.1 of'the collective agreement. Mr. Hildebrandt denied then req~uest. According to the grievor, he said that the policy in such circumstances was to grant a day off without pay. If the grievor did not wish to lose compensation for that day, he could use a statutory 4. holiday credit. Mr. Hildebrandt apparently reiterated that this had been the past policy with respect to other staff members in similar circumstances. According to the grievor, he added that a compassionate day was only granted if the situation was an emergen~cy. Soon after this meeting; the grievor submitted to Mr. _ Hi,ldebrandt the following ~letter: 10 June 1983 Mr. J. Hildebrandt Superintendent Mr. Tom Jackson, C.O. . . COMPASSIONATE LEAVE Sir: " 2 I would like to us& 1 (one) days compassionate leave ohSaturday, June 11, 1983. My spouse's grandmother passed away and this is the funeral date. I must attend the funeral to be with my wife and comfort her during this rather emotional time. In addition, I have ~to serve as pallbearer. Thank you for your consideration. Mr. Tom Jackson Essentially, the letter reiterated in a formal smatter the verbal requests that the grievor had.made to both Mr. Hill' and Mr. Hildebrandt. On June 13, which was the Monday after the funeral, the grievor received the following written response from Mr. Hill: I 5. June 13, 1983 To: Mr. T. Jackson, C.O. 2 From: Mr. C.W. Hill Deputy Superintendent Re: COMPASSIONATE LEAVE Your memo of June 10, 1983 regarding compassionate leave to attend the funeral of your wife's grand- mother has been given-further consideration. Following your conversation with the writer on June 9, 1983 and Mr. J. Hildebrandt on June 10, 1983, we 'do not feel you can be granted compassion- ate leave for June 11, 1953. CWH:pg C.W. Hill Deputy Superintendent Mr. Xildebrandt testified that he instructed' Mr. Hill to prepare the' above response after he received the griever's letter and had discussed it with Mr. Hill. According to Mr. Hildebrandt, he and Mr. Hill reviewed the grievor's request in the light. of detailed guidelines regarding administration of the special and compassionate leave provisions of the collective agreement, which had been issued by the Ministry on March 10, 1981. These guidelines, Mr. Hildebrandt testified, did not appear to disclose any reason for reversing his original decision to deny compassionate leaver. At the hearing, the parties made submissions on two issues. The first involved the question whether the Board had jurisdiction. to review the exercise of management's decision under Article 54.1. The' second issue depended upon an affirmative answer to the first. 1t was whether 6. management acted reasonably in denying compassionate leave under Article 54.1. These issues will be dealt with seriatim herein,below. On the first issue, the Employer made extensive submissions which essentially derived from the decision of the Ontario Court of Appeal in Metropolitan Toronto Board of Commissioners of Police v. Metropolitan ~Toronto Police Association (1981)., 33 O.R. I 476. In that case, the Court stated, inter alia,' that a "management rights clause gives management the exclusive. right to determine how it shall exercise the-powers conferred on it by that clause, unless those powers.are otherwise circumscribed by an express provision of the collective agreement." Id. at 418. The - Court went on to say that a aboard of arbitration did not have jurisdiction to imply that the exercise of management's rights under such. a clause must be fair and without discrimination. The Court added, "If .such a term .were 'to be ,implied, it would mean that every decision of management made undoer 'the exclusive authority of the management rights clause would be liable to challenge on the grounds that it was exercised unfairly or discrimatively. In our opinion, this would 'be contrary to the spirit and intent of the. collective agreement." Id. - This decision caused considerable concern among arbitrators. It was unclear how far it was to go. Was 7. a decision under a management rights clause to be unreviewable because of some peculiar feature that such a clause was perceived by the Court of Appeal to possess -- perhaps as an express reservation of areas of exclusive authority of management? Or was the Court of Appeal addressing all provisions of a collective agreement under which management was granted ,the authority to make some decision? If the Court of Appeal intended its reasons for judgment in Metropolitan Toronto Board of Comissioners of Police to reach all provisions of a collective agreement, then it would have to be concluded that 'the Court intended to dispose of a doctrine which had gained currency in arbitral jurisprudence. -This doctrine. was called the theory of reasonable contract administration and interpretation. The theory- of reasonable administration and interpretation was set forth in Re: International'Nickel '2 (19771, 14 L.A..C. (2d) 13 (Shime), as follows: The theory of reasonable administration and interpretation is supported by the arbitration award in Re Oil Chemical and Atomic Workers and Polymer Corporation Limited (19581, 10 L.A.C. 31 (Laskinl, at p.36, which imposed a theory of reasonable behaviour on union officials in administering the no-strike provision of ~the collective agreement. We read the, Polymer case as imposing an obligation on the union to' reasonably administer the collective agreement in so far as its obligations are concerned. In arriving at its decision it is apparent that both the board of arbitration as well as the Supreme Court of Canada assumed that the parties to the collective agreement are required to engage in reasonable behaviour during its currency. There is nothing in the language of the Polymer agreement that specifically required union officials to act reasonably with the standard set out in that case. Their b~ehaviour. was examined against~ an implicit standard of reasonable behaviour. In our view. this same theory must apply equally to the company as to the union, and the company must likewise administer 8. its obligations in.a reasonable manner. . . . Id. at 19. (Emphasis supplied.) Did the Ontario Court of Appeal intend to dispose of the theory of reasonable contract administration and interpretation, so that decisions of the parties under all grants of authority in a collective agreement no longer might be reviewable against some standard of reasonableness? In Toronto Printinq Pressman and Assistants' Union No. 10 v. Council of Printing Industries of Canada (1983),. 83 C.L.L.C. para. 14,05U (Ont. C.A.), the Court of Appeal tended to indicate that it did not intend its earlier decision in Metropolitan Board of Commissioners of Police to have such far-reaching ~consequences. In that case, the Court considered a decision of a board of arbitration that an employer had to act.in a good faith manner when administering the following provisions of a collective agreement: Article 22: The employer shall permanently classify thirty-four (34) employees under. this Agreement. 9. The court said, "The majority concluded, although many words were used, ~that the mandatory obligation to permanently classify 'must be done. in a bona fide fashion. -- They then proceeded to consider' whether the carrying out of the permanent classifications obligation had indeed been discharged in a bona fide fashion and concluded, -- on the.ir interpretation of the facts that it had not. . . . In our view, the, interpretation placed on Article 22 by the Board in light of the whole collective'agreement was one it could reasonably bear, :or to use the words of some of the authorities ins the field, the interpretation is not 'patently I. ~unreasonable';" Id. at 12,271-72. - : 'The Divisional ~Court .seems. recently to have indicated that it might regard. ~the Council of Printing Industries case; above, as restricting thee' impact of Metropolitan Toronto Board of Commissioners of Police to management decisions unde~r the management rights clause of a collective agreement.~ Ins Re The Board of Governors of Fanshawe College of Applied Arts and Technology v. Ontario Public Service Employees Union, Local 110 (January 1, 19841, Unreported (Van Camp), the court made the following observation regarding the relationship between the above two decisions of the Court of Appeal: 1Q. In my opinion, the board followed the principle set out in [MetroDolitan Toronto Board czf Commissjane me1 which does not . . . differ from the principle set out in the subsequent decision of the Court of Appeal in . . . Council of Printinq'Industries of Canada . . . . In the former, Holden, J.A., speaking for the court at p. 478, said: . . . [quoting extensively the language of the case specifically focusing upon the management rights clause]. In the latter case, it was not a management rights clause that was being reviewed. . . . Id. at S-6. The Divisional Court distinguished the two cases on the ground that Metropolitan Toronto Board of Commissioners of Police dealt with a decision of management pursuant to a management rights clause, while Council of Printing Industries of Canada 'dealt with the review of a decision of management under some other clause of the collective agreement. In light of the current feend in the courts, it seems to. us that we retain the power to review against some standard of reasonableness the decision of management in the present case. The decision was not made under a management rights clause. It was made under. Article 54.1 of the collective agreement. Nothing in Article 54.1 expressly empowered management to exercise unfettered discretion in making a decision under the Article. Nor did Article 54.1 expressly forbid arbitral review of 11. decisions thereunder. This brings us to consideration of the standard of reasonableness against which the decision of management might be measured. Arbitrators, have'enunciated many standards of reasonableness, ranging from full-scale review of the correctness of a decision to measurement against a. more restricted standard of good ,faith. Generally, the, question of which standard to apply might be taken to depend upon interpretation of the Article in question -- for example, its precise wording, it.s relationship to other provisions of the ~agreement, the importances of the decision to the parties, and, the :jurisprudential :backdrop against which the wording of the. Article was negotiated. Consideration of these factors 'might serve to indicate the scope of .discretion that the: parties .intended management' to have . in making decisions Iunder the Article. In the present case, there was evidence that when the parties negotiated Article 54.1 they contemplated that management would exercise its discretion under Article 54.1 in fairness and good faith. The Employer had issued guidelines to this effect which expressly referred to their being in response to certain negotia,ted changes in Article 54.. There also was jurisprudence to this effect. See, Re Elesie and Ministry of Health, G.S.B. #24/79 (Swinton), at 4-7. See also, Freeman and Ministry of Health (1981), G.S.B. #87/80 (Weatherill!, where the Board said, a., :: AL. . "One [comment from the Elesie case with which we agree] is that . . . compassionate leave is granted to an employee when he or she is in a situation deserving of sympathetic treatment. Another, .o.f course, is that the board must show deference to the exercise of managerial discretion . . . and not decide on the 'correctness' of that exercise when the issue is one of reasonableness, it should not. construe r 'reasonable' to mean 'any possible. reason'. In terms of the criteria applied in the instant case, we do not consider it reasonable to construe 'necessity' as meaning 'absolute necessity'." Id. at 6. - When we turn to the facts of this case with the above considerations in mind, we are led to conclude that Mr. Hildebrandt's decision to deny compassionate leave to the grievor was made in fairness and good faith. As to good faith, there was a reasonable relationship between the factors considered by management and the compassionate nature of the Article. The decision was made in a sympathetic manner. .The grievor was not denied leave to attend the funeral. He was assured from the outset by both Mr. Hill and Mr. Hildebrandt that he could have the day off. The only dispute was as to whether the day would be treated as a leave of absence with or without pay. Nor was the determination that the leave would have to be without pay out of keeping with the compassionate nature of the Article. According to the grievor's own 13. testimony, he used one of his holiday credits to prevent any loss of income that might otherwise have resulte,d. The death was not of a relative that even the parties to the collective agreement recognized as being close enough to justify the grant of 'paid bereavement leave. See Article f 48.1 .of the collective agreement. While his desire to do so was understandable, the grievor did not have to agree to act as a ~pallbearer . There was no necessity, even in the sense.used by the Board in the Freeman case, supra. As to fairness, Mr. Hildebrandt made his decision according to general criteria established by ,his 'Ministry.~ There was no discrimination. In fact, it was explained to the grievor from the outset that as a matter of treating like cases alike, compassionate leave could not be granted. Other staff members in similar circumstances had been granted the day off, but likewise had been refused their request for leave with pay. The grievance is dismissed. DATED AT London, Ontario this 19th day of April 1984. IN THE MATTER OF AN ARBITRA'ZION Under the CROWN EMPLOYEES' COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMZNT BOARD BETWEEN: OPSEU (Thomas Jackson) AND: Griever THE CROWN I>J RIGHT OF ONTARIO (Ministry of Correctional Services) EMPLOYER DISSENT _---_-- I have had the opportunity to review the decision of Vice-Chairman, R. J. Roberts, in this matter and, with respect, 'must dissent 'from his decision to dismiss the grievance. Lengthy arqument was submitted at~the hearing by the representative of the Employer as to the jurisdiction of the Grievance Settlement~Board to review the decision to deny compassionate leave under Article.54.1 of the Collectives Agreement. In summary, the argument was that a decision to deny or grant compassionate leave under the Article in question called for the.exercise of a management right or discretion. As long as the discretion was exercised, it was submitted that it could not be called into question on the ground of reason- ableness. It was further submitted that prior decisions of the Grievance Settlement Board, which held that similar decisions , - . of management were subject to the standard of reasonableness, were improperly decided. With this I must strongly disagree. I support the position stated by the Vice-Chairman that the Grievance Settlement Board retains the power to review decisions taken under Article 54.1 against the standard of reasonableness, and that management decisions taken thereunder are not to be viewed as the exercise of an unfettered discretion. On the merits of the grievance, I have concluded after a hearing of evidence and argument, that the decision to deny compassionate leave was not taken reasonably by the Employer. In my opinion, the Employer did not make a serious and diligent effort to inquire into the specifi.c facts provided to support the request of the Grievor. These facts were first reported orally to Mr. C. W. Hill, the Deputy Superintendent of the Detention Centre, on June 9, 1983, and then subsequently ?ut into written form by letter of June 10, 1983, to Mr. J. Hildebrandt, Superintendent. I note in this regard that the initial position adopted,by Mr. Hi'il on June 9, \ 1983 and the response of Mr. Hildebrandt on June 10, 1983, both reflected the view that the specific request in this instance should be denied in that in the past Correctional Officers in similar circumstances had been required to use one of their holiday credits to cover the day off, or, if such credits were unavailable, to take the day off without pay. I note further that the Step 1 and Step 2 responses ~of the Employer, d~ated June 13, 1983, and August 12, 1983,. respectively, did not address the specifics of the compassionate nature of the Griever's request. In my opinion, where an Employee makes a request pursuant ' to Article,54.1, it is incumbent on the Employer to review the specific facts alleged by the Employee in support of the claim for compassionate leave. While uniformity and consistency of application of the collective agreement is to be desired and promoted, such considerations‘ should not be utilized to the -2- exciusion of a full and fair consideratioh of the. employee's particular circumstances. Indeed, the Guidelines of March 10, 1981, issued by the,Employer, suggest as much by stating that “in the. fina analysis, management must give full and proper consideration to the merits of each application for specia2 and compassionate leave before deciding to grant or deny the leave ‘I. In examination-in-chief and again on cross-examination ,I Mr. Hildebrandt's attention was directed to the factors or considerations listed in the aforementioned Guidelines. He was called upon by both the representative of the Employer and of the Grievor to assess the decision to deny the request for compassionate leave against the considerations contained in the Guidelines. His response was that the Grievor was not in any way prevented from attending the funeral in.question and that he treated the request in the same way that he had consistently treated similar requests in the past. I am not~persuaded that Mr. Hildebrandt had regard to the specifics of the particular .request of this Grievor. Rather, it is my opinion that he unduly fettered his discretion in relying on the narrow issue of consistency. In so doing, I conclude that he did not fairly and reasonably exercise his discretion pursuant to Article 54.1 so as to determine whether the Grievor was deserving of sympathetic treatment. The fact that the death in this instance was not of a relative recognized under Article 48 for purpose of Bereavement Leave is not, in my opinion, a fact of primary relevance in decisions to be made by the Employer under Article 54.1. As stated above, the Employer in this type of case should have regard to the specific circumstances affecting the Grievor, rather than.merely apply a pre-existing policy in a routine fashion. -3- For all of the above reasons, I would have allowed the grievance and granted the settlement requested. DATED at Windsor, Ontario, this 19th day of April, ~1984. ol%h?N. w= MICIIAEL V. WATTERS. -4-