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HomeMy WebLinkAbout1983-0511.Adams.84-05-10IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (H.B. Adams) Before: Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L. Verity, Q.C. Vice Chairman S. Dunkley Member W.A. Lobraico Member For the Grievor: M. Wysocki Grievance Officer Ontario Public Service Employees Union For the Employer: P. Radley Staff Relations Officer Ministry of Correctional Services Hearing: April. 5, 1984 -2 - DECISION In a grievance dated July 4, 1983, H. B. Adams alleges . that he was improperly ordered to take July 1, 1983, as a statutory holiday. The Grievor had been previously scheduled to work on that date, and he alleges that, he was given inadequate notice of a change in shift schedule contrary to the provisions of Article 10.1. By way of settlement, he requested premium payment and compensating leave as provided for in Articles 10 and 19. The following statement of facts was agreed upon by the Parties: "1 . The griever comrenced enploymant with the Ministry of Correctional Services on July 2, 1974, as a correctional officer at the Hamilton Jail. He is currently employed as a Correctional Officer 2 at the Hamilton Wentworth Detention Centre. 2. The griever's classification is assigned to schedule 4.7 and his normal hours of mrk are forty (40) hours per week and eight (8) hours per day. 3. The griever was scheduled regular &ys off on June 28, 29 and 30, 1983, and to work the 0700-1500 hours shift on July 1, 1983. 4. In a memxandum dated June 24, 1983, Mr. Johnson, Assistant Superintendent, advised the grievor that he was not 'co report for wxk on July 1, 1983, and that he was granted a statutory holiday on this day in conjunction with his regular days off. 5. The griever did not work on July 1, 1983 (Dominion Day) and he received holiday pay (i.e. 8 hours regular pay) for the day." At the Hamilton-Wentworth Detention Centre, Assistant Superintendent, Allan Johnson, has the responsibility for scheduling shifts for each of the institution's 150 Correctional Officers. He -3- testified that all shift schedules are posted three weeks in advance, and changes to the.schedules are normally posted every Thursday. On the evidence, there is no doubt that Mr. Johnson prepared a memorandum on June 24 which directed the Grievor to take July 1, 1983 as a statutory holiday. Under Article lO.l,of the Parties' Collective Agreement, there is a requirement that shift schedules be posted 15 days in advance, after which there shall be no change in the posted schedule unless notice is given to the employee 120 hours in advance of the schedu .led shift. Through no fault of either Assistant Superintendent Johnson or the Grievor, the Johnson memorandum was not received by the Grievor until lo:30 a.m. on June 27, 1983. No explanation was presented at the Hearing as to the reason for the delay in notification. The Union argued that the Grievor did not receive the 5 day notification of a shift change required by Article 10.1, and that the Employer's failure to give adequate notice triggered the premium payment provisions of the Collective Agreement. In essence, the Grievor is seeking payment to which he would have been entitled had he worked on July 1, 1983. The Employer adopted the position that the Grievor had been paid for 8 hours holiday pay under Article 19.2 and that he was not entitled to further compensation. The thrust of the Ministry's -4- argument was that Article 10.1 was inapplicable as there had been no change to the Grievor's shift schedule. Both the Union and the Ministry arguments were amply augmented by previous Grievance Settlement Board Awards. The relevantprovision of the Collective Agreement is Article 10.1: "Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be nochange in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not, notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (l-1/2) for the first eight (8) hours mrkedon the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control." Having reviewed the evidence, the arguments and the arbitral precedents cited, this Board is of the opinion that in the instant grievance the Employerhas not violated the provisions of Article 10.1. Vice-Chairman Swan in E.E. Charlebois and Ministry of Correctional Services, 168/77, sets out the general purpose for the inclusion of Article 10.1 at page 5 of the Award: "The purpose of a clause like Article 10.1 is to strike a reasonable balance between the interests of the employer and those of the employees. Here the qloyer's interest is protected by an unlimited riyht to schedule and alter shifts. The qloyees' interests are protected by a -5- requirenent for advance scheduling and provision for notice of alteration of shifts once scheduled, with a penalty inpremi~payexacted&?n the notice is not timely. Thatbalanceisclearlythemainthrustofthe clause, and the 'beyond control' provisomaybe seen as amsure to protecttk employer fmnexcessive exposure in extraordinary circumstances." Clearly, management has exclusive jurisdiction to determine the complement, organization and assignment of work. Section 18(l) of the Crown Employees Collective Barqaininq Act states: "Every Collective Agreement shall be deemed to provide that it is the exclusive function of the employer to nsnage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) . ..compl-t. organization, assignment... and such matters will not be the subject of collective bargaining nor aone within the jurisdiction of the lxerd." However, the Parties' Collective Agreement does provide certain financial consequences which flow from specific work assignments such as overtime. See OPSEU (Eric Birse) and Ministry of Correctional Services, 338/83, 339/83, (Samuels). In the instant grievance, the issue for determination is whether there has been a change in the shift schedule as envisaged by the wording of Article 10.1. It may be said that from the Grievor's standpoint, there was a change in schedule attributable to the fact that he was not required -6 - to work on July 1 after having been scheduled to work on that date. However, in our opinion, there has been no change in the shift schedule as contemplated by the relevant Article. Clearly, there was no new shift established. The evidence reveals that the Grievor was not changed from one shift to another, but remained on the same shift. The only change that took place in the instant Grievance was the requirement to work. We are supported in this finding by the wording in the second sentence of Article 10.1 which provides, in part, for premium payment where improper notification has been given "for the first 8 hours : worked on the changed shift" (our emphasis). We would agree with the rationale of Vice-Chairman Samuels in the Birse award (supra) where it is stated at page 6: "We find that there is no provision in the collective agreement which prohibits manag-t from ordering the grievor to take the day off on a statutory holiday, even though he was scheduled to work." Simply stated, there is no guarantee that work at premium pay will always be available to an employee on a statutory holiday. See OPSEU (Mark Ferguson, et al) and Ministry of Correctional Services, 78/82, (Jolliffe). Having found that there was no change in shift schedule, it cannot be said that Article 10.1 has been violated by the Employer. - 7 - The remedy requested by the Grievor can only be accommodated contractually. Accordingly, this Grievance must be dismissed. 0 DATED at Brantford, Ontario, this 10th day of tiay, A.D., 1984. ,-(a-4 L e+ 7 R.L. Verity, Q.C. Vice Chairman W.A. Lobraico Member 1