HomeMy WebLinkAbout1984-0223.Kellogg.84-07-31IN THE MATTER OF AN ARBITRATION
Under
THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLENENT BOARD
BETWEEN:
BEFORE
FOR THE GRIEVOR:
FOR THE ENPLOY'ER:
HEAEING DATE:
OPSEU (R. Kellogg)
Grievor
- and -
The Crown in Right of Ontario
(Kinistry of Correctional Services)
Employer
N. Gorsky Vice Chairman
H. Simon Kember
J. Korrow Member
P. A. Sheppard
Grievance Officer
Ontario Public Service Employees Union
J. F. Benedict
!:anager Staff Relations
Personnel Branch
Kinistry of Correctional Services
Kay 11, 1984
DECISION
The Grievor, R. Kellogg, is a Correctional Officer 2,
employed by the Ministry of Correctional Services at the Metro
Toronto West Detention Centre ("M.T.W.D.C.") and has been
employed by the Ministry for approximately six and one-half years.
On March 8, 1983, he submitted anapplication for a lieu day
request for Sunday, March 20, 1983, and noted on the applic-
ation that he had lieu time banked for this purpose (Exhibit
6). The request was refused on March 9, 1983, on behalf of the
Ministry, the reasons for the dismissal, as written on Exhibit
6, was "not 14 days notice - also cannot be granted on
$3 shift." It was agreed that the Grievor would normally be
working the number three shift from 11:OO p.m. to 7:00 a.m. on
the lieu day requested. I am satisfied that the application was
submitted on March 8, 1963 and not on March 9, 1983. The Griever'!
recollection of the date was clearer than that of Mr. N.L. Jones,
the representative of the Employer to,whom it was submitted, and
who had the final say for the Employer on the matter.
On Xarch 19, 1983, the Griever filed the two grievances
which are now before this Soard. Gr-ievance 223/83 contains the
following statement of yrievance:
"Unjust procedural guidelines regarding
lieu time."
Grievance 224/84 contains t!le following StateIWnt of
grievance:
~.__
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: + The Grievor testified that the application for the single
lieu day was made by him (Exhibit 6), because he wished to have
an additional day off, to be added to four days then due to him
in order to enable him and his wife to visit the home
in Groton, Connecticut, where they had originally met.
The trip
had a great deal of sentimental significance for them as the home
was being sold by their friends, the present owners. The Grievor
testified that, with travelling time, four days would furnish
inadequate time to satisfactorily accomplish their purpose.
The difficulty faced by the Grievor arose out of the
existence of a memorandum dated January 6, 1982,to all correc-
tional staff at the M.T.W.D.C., prepared by Mr. Jones, the then
Senior Assistant Superintendent,which is part of Exhibit 6, and
which the Grievor was aware of. The relevant portions of the
memorandum state:
"Time Off
The procedural guidelines outlined below will
apply as follows:
1. Time off requests regarding single lieu days
and vacation days must be submitted no later than
two weeks prior to requested time off date.
2. Time off requests regarding single lieu
days or vacation days will be accepted no sooner than one
month prior to time off date.
3. YOU will receive the answer to your request no later
than one week prior to requested time off date."
A clarification memorandum with respect to requests
for time off \<‘a~ .issued by >ir. Jones on July 21, 1982, being
part of Exhibit 6,and is as follows:
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"The present system of requesting/receiving Vacation,
single vacation days, lieu days or shift changes would 2 4 appear to have the desired degree of flexibility that the
system was designed to give. However, problems have been
experienced in the timing of such requests and in some
areas a certain amount of manipulation of the system is
occurring. This is resulting in an increasing number of
denials and aqgrevation in attempting to administer the
system in fairness to all concerned. Staff members are
submitting requests for time off for weddings, family
affairs etc. when they were fully aware of the impending
affair months previously. However, staff are submitting
their requests three days prior to the event expecting
full consideration to be given to their request.
"In an effort to give the system a greater degree of conform-
ity and fairness the following system will go into effect
on receipt of this,memo. I must remind all staff that
in emergencies every consideration will be given and the
following rules will not apply.
"A new form has been designed which relieves the staff
member from submitting separate memos for the desired time
off. This form covers the three categories and only one
need be submitted and re-submitted until the desired change
is achieved. Therefore prior .to a shift change being granted
as marked in area "D", areas "A" and "B" will have to be
denied and recorded in area "C".
“The following time limits have been set which it is,felt
under normal circumstances will accommodate the requests.
Lieu Day: Requests are to be submitted to the appropriate
authority approximately two weeks prior to the day
requested as time off. You will receive an answer at least
one week prior to the requested day off. Lieu days will
not be granted until ear-ned.
Sinale Vacation Day: Requests are to be submitted at
least two weeks prior to the requested day off to the
appropriate authority. Single vacation days will only
be qranted when the staff member has no lieu time banked.
YOU will rscieve your answer one week prior to the requested
day off."
The Grievor testified that he submitted his application
for a lieu date (Exhibit 6) to Xr. Jones, a 12roner i;,anaqement
authority, and explained to him the reasons for the request, as
above oiltlined. 5: r . hones indicated to the Griever that he would
submit the apslication to T. O'Connell, i,:h0 b:as then the
sche<ulinq officer xi%h the responsibility for vetting such
applications. It is likely that Mr. O'Connel received the ; _~C
application from Mr. Jones on March 9, 1983, however, I accept
the Griever's evidence that he submitted it to the Employer on
March 8th.
As noted above, the Grievor was aware of the memorandum
of Mr. Jones concerning time-off requests but concluded that he
was entitled to favorable consideration under the elaboration
on the guidelines of January 6, 1982, as contained in the
memorandum of Mr. Jones of July 21, 1982, where, under the
heading cf "Lieu Day", it was stated: "Requests are to be
submitted to the appropriate authority approximately two weeks
prior to the day requested as time off . ..." As weL1, the Grievor
believed his application was entitled to favourable treatment
because the memorandum of July 21, 1982, contained the following
statement in paragraph two:
"in an effort to give the system a greater degree
of conformity and fairness the following system
will go into effect on receipt of this memo. I
must remind all staff that in emergencies every
consideration will be given and the following rules
Gill not apply."
in the view of the Grievor, the distance between Toronto and his
destination in Groton, Connecticut was so great that he was
entitle< to favourable consideration in the light of the
statements contained in the second paragraph of the memorandum
of J,ly 21, 1982. If such guidelines were binding, I could not
reqard the Griever's situation as constituting an emergency as
ccnte:,olated in the guidelines.
The Griever testified that he first received notification
: 17. a ; 13 i 5 application had been rejected on Xarch 10, 1983, as he
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' wasicoming off shift. The copy of the rejection, as set out
.n Exhibit 6, had been placed in his box. Upon learning of the
rejection of his application, for the reasons endorsed on the form,
as above set out, the Grievor immediately took the matter up with
Mr. Jones. He said that he reviewed his reasons
for the request
with Nr. Jones in an effort to demonstrate that it had not been
made frivolously. He also showed Mr. Jones a copy of an Award,
dated Yarch 23, 1982, made by a Board, chaired by R. L. Verity,
O.C., arising out of an arbitration under the Crown Employees
Barqaining Act, between O.P.S.E.U. and.the Crowns in the Right
of Ontario,' as represented by the Ministry of Correctional Services,
Grievance of Douglas Tremblay. An application for Judicial Review
of the Award was subsequently dismissed on September 2, 1983,by
the Divisional Court of the Supreme Court of Ontario.
The Tremblay case involved an alleged violation of Article
19.4 of the relevant collective agreement by the Employer,because
of its failure to grant a requested statutory lieu day to the
Grievor, in that case, Douglas Tremblay, on April 25, 1981.
Articles 19.1 to 19.5 of the relevant agreement are as follows:
">ztticle 19 - Eolicay Papent
19.1 \r'here a~. emsloyee works on a h01iZ~y
inclueed unher Article 47, F;olidays, (sic)
he ~5211 be paid at the rate of *j-e L -.I,
2nd one-half (l-1/2) for a11 hOUrS
,gorked v,.-;lth a miniram credit of s5'ieE
and one-cuarter (7-l/4) or eight (2)
'n0.x s , as applicable.
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3 i
19.3. When a h li ay included under
%olidays?slSfincides with an ,m~,t~,C~ZS""
scheduled.day off and he does not work on
that day, the emplovee shail be entitled
to receive another Aay off.
19.4 Any compensating leave accumulated Under
sections 19.2 and 19.3 may be taken OF+ at --
a time mutually agreed upon. Failing agree-
ment , such time off may be taken in con;unction
with the employee's vacation leave or regular
day(s) off.
19.5 Any compensating leave accumulated under
sections 19.2 and 19.3 5n a calendar year
which is not used before Narch 31 of the
following year shall be paid at the rate
it was earned. Effective Xarch 1, 19i8, the
xarch 31 date may be extended by agreement
at the local or ministry level.
The like provisions of th,e Current Collective agreement
is the same except for Article 19.1, where "two (2). times" replaces
“time and one-half (l-1/2)."
The following r-elevant portions of the Treinblay Award
are reproduced.
"The material facts are not in dispute. T?.e Griever is
--i ,zzs Lr'ied as a Corzecticna- -- 1 Officer 2 at the Waterloo Detenticn ;
c E :: zza, ar!c Lx eat capacity he works on a rotatics shift basis.
Tke criavor has 'bee2 er,?loyed at The Katerl00 Centre for soae
:bmrfe years, and has been with ;be TCinistry fcr approxiynately
.:i:e years.
"Tbe ,=\r<de--ce i>+cr*f=s ch2.t Each ccrrecsiona1 Officer
;' c z :i: 5 s e -: e :. to eicl-.: scnsec~~zive Civs i;? cne cf c:qree rc:a:i=c
,s.:.I.:rs (3ay Shift -- 730 a.m. tc lrO0 3.a. ; .l.fter:ocr. Chif: --
3 : : 0 ;. .Y. ;o 11:PO F.z.; ::ich: S?.ift -- li:OO 3-m. CO 7:00 a.m.).
-a-
/
G. f :e‘T seven or eight consecutive days on one shift, the Officer
xccld'be entitled to two davs o;f before rotating s:hifts, -- 5.21
-lterAatively four days off according to the scheduling.
10 Douglas Tremblay had been required to .wor:< cn stat-tory
bclidays, and as of February of 1981 he had seven StatutOIy hciida:Js
acc.mulated to his credit.
" on February 5th, .the Griever silbmitted 2 r2queSt 12
qiritigg for days off work, a+mely Friday, April 24th and Sat..~rCaY,
2 2 r 11 25th, to be t&en as "lieu days". On rebruazy 1Oth, he ~-as
atvised iti writing that April 24th had been granted, but AsrF1 25th
:~as ndt acceptable. Gntil this point iA time, there was r.0 crel
cc;;ir.unication between.the ?arties. Subsequently, on Februazry 12th,
the Griever spoke wi'& Serkeant 2. C. Eolley who was in charge of
staff scheduling L?d a PC. Mowle, the Shift Supervisor, 50~ ~-he
:+guzposes of re iterating his request. The GrF.evor stated the reasoa
for iis request, namely his desire to take lieu days to sartici=a>e
ZT -.1 a bc%liqc tocrnL7ent and 5anGuet on the days in guestion. Ee
25cL2
2 t the aeetinq of ?ehr-uary 12, 1981, referred to:
AS the differences between the parties could no t be esolved
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a*.?. second meeting was held between the Grievor and Y!.
xolley in the presence of the Unibn Representative,Steven ;~~-istrong,
on. ?ebr.,iary 17th. At that meeting, the Grievor's evidence was to
the eff ect that he relied upon the wording cf &;Lrticle 19.: 'of the
Colleqtive Agreement to justify the request to take April 25th as a.
I- iles day 1.1'
'<The Union's
argL;ent is that under 19.4, the Ziqloyee has the r ight to reTLest
the lieu day for compensating leave accumulated under 19.2 and 15.2
s.&ject to a ;nutual agreement between the Parties. in the absence
of 2. mut~dal agreement, the discretion reverts'back to the Zqloyee
to 6etenir.e 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 eD2 of the calendar year
cneer 19.5. In the absence of a mutual agreement, it was the Uaion's
00sitrc,n that the 27plovee would have the unfettered right to deter-
xnine the schelulinc of the lieu day or days 2rc3iding 5at these da.l;s
are t+:<en in conjunction Fith the EmFloyee's vacation or regular cays
Off. i n e55ence it was ',e Unicn's Fosition that in the abse:ce 12,
a ~2rx;l agreement, the Sr.~loyer ' s denial was i.m?rc?er a22 t:-.a: t.'e
r3,7!>loyee .?ad the sole discretion in scheduling 5he lien day in
2ccorc5arrce with the wording cf ;zticle 19.4.
II . . . [I]t ~2s arcued [by the Employer] that if the
Board found as a iact that the Employee was denied
,L.cril 25th as a lieu day, that it was !>ianacement's
r;+t to do so and t:hat the 6ecision to deny was . e,:erc1seo reascnr.. -5lv, in coo6 faith, non-arbitrarily,
ano \?ithout _ -;-?;Fatlon. C1SCI -11.-.1 In 5u:3:30rt of its contention,
!Gr. Senedict cited the ?:anagenent Rich: ?ro\,ision in the
crcwr. C~,plc\~ees Collective Zarz:aininc Act, R.S.O. 1980,
2nd in particular Section 18(l):
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?-E (1) Every collective agreement shall be deemed
to provide that it is the exclusive function of the
employer to manage, which function, without limitinc
the generality of the foregoing, includes the right-
to Eetemine,
(2) employment, appointment, complement,
organization, assignment, discipl-ine,
dismissal, suspension, work methods
and procedures, kinds and locations
of eguiFment and classification of
positions; and...........
2nd such matters will nOt.be the subiect 0:
collecti\,e bargaining nor ccme within the
jurisdicticn of a board.'.
"T?.e Zm;7i=loyer argued that .Xanagement has tiie ezcl-si-be
r 1 c '1 t _. t 0 schedule working and non-working days, except StEt*JtCrV
-
ihli~2YS, unless specifically restrained by the Collective Agreement.
.e . 3enedict argued that the secork sentence of..lrticle 19.1 does
:iace e resCL '-aint on Manage,ment's right to schedule lieu da.:s. Taiiiz= .-
acreer?.ent between the Parties, the discretion remains vith Uanagerent
as evidenced by the use of the word "r;.ay" in the seconc sentence of
;;ticle 19.4. Therefore, it was argued that if .".anagement deciEe5
to ~~:3ed-;le 2~. 3sployee's lieu cays, >!anagement nay sc:hedule them
I7 ccnju.-!c,tio2 with the Employee's regular days Off or vacaticn. -_.
t.?e event that .- . I 2 Xanagement ceclaec, for wlh'atever t:he ie250.1, :ot to
SC:-;.e<cle them, >..rticle 19.5 would coze into effect, azd the 27,?loyee
2cul 6 :?,a.ve these days banked to his credit. on t h i 5 rationale, tr.ere
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ant t.i.2: X+nacement ha< advised the %?lOyee to a?;ijr again at
:, i.
i. laze= date or alternztively to arrange a shift exchange.
"The evidence indicates that Management has developed
certain guidelines for the implementation of the wordinq cr the
-- Lb ‘-i;cle which is unilateral in nature and which- apFears not to be
well understood by the Employees. For exmple, the Zm-,lcyer's
evidence was that lieu day 5 2re sometimes sranted and scmetimes
refcsed, and when granted are normally tal<en cn a T::esday and
"riday. The evidence of the Grievor indicates t!!at this guideline
'*as nc: .unlerstood by him.
'1 - lt tspeers to us that the wording of the first sentence
of Article 19.4 indicates clearly that Nanacement doesn't ha-;e
the unfett ered discretion in the schedulinlc of lieu days. The
f i r s : sentence of that kticle spea!<s of a nutua1 a.creement. , 75
:.;azacezent's interzretation is correct, then the last =e-+=r-= of I . . . ..-..u-
lg.4 would be virtually meaninqless. .Y+nacement 1s .alLecl,75 t:kt
:-I the a-vent of -. failure to reach mutual agreement, Xanaseaent ;ioul<
hzve total discretion to reSOit to the provisions of Prticle 19.5.
81 Ix.ocr view, the cse of the word "nry" is tke seconC
se.gtesce cf 19. L zealis that neither !knaqament nor ;ne Em=lovee
is joi13c ':y tee zc-x3;la of lieu Cay txae. . - The Eiscretisn t:~en ;everf
tc the _ _ 3zlovee co select a lieu Czy ccnticuous wit:h the Ci2,lcvee's & - -
-;ic+:ic: CT Ial's off (either ix7.ediately before 01 ir;-7eciztely after - -7
EiL:-.fr c~:e) CT a1tev--+'vely to bank _ .‘C LL the lie12 12~ ;*;rs;lnt tc '-,e
.=:ovisicns of Article 19.5. (e.-??iasis added)
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.c= @loye?'s evidence is that there was a ccxtizgency
-7 -- &‘zS to pay classified staff overtine ?ay or alterzatively y
e.mloy "casuals". It is our opinion that the Sm?loyer's contincenc\- - _
FLan should also e~ply to the schec?uling of lieu&ys where >utua:
acreenent cannot be achieved under 19.4. !:anagenent's reluctance to
so so, in this instance, is as a direct result of a :!inist=v d.irect,,-e
;o 2vciZ 32penc of overtime, 2s well as a concern icr the src;er
52lar.cinc. or' ces.c2l and classified staff. Ehile it :.a.' be s+i;_
t n 2 t 7 n 1 s rationale has ;nerit, in our view it has no releT:ance
to ::?e interpretaticn of Article 19.4.”
The Grievor expressed his view that inthe event of
mutual agreement being impossible as to when he would take
the lieu day (as it xas in the Tremblay case) the declaration
made in the Tremblay case should apply and he was entitled to
take the lieu day at the time reguested by him. The Tremblay
declaration is as follows:
?Zan 2veil+ble in the event of illness dr enercency. The co3ti~ge~c~2
-
- 13 -
Mr. Jones then re-affirmed the position of the Employer
and added that the Tremblay award was then in the process of
being judicially reviewed.
In response to the Griever's observation that the
memorandum of July 21, 1982 had provided for a more flexible
treatment of requests for time-off and that the lead time for
lieu day requests was not fourteen days but "approximately two
weeks," Mr. Jones is supposed to have reiterated the necessity
of adhering to the original two week requirement which he said
continued to be applicable to the Grievor's application. Thee
matter remained unresolved and the Grievor and his wife left on
their trip. According to the Grievor, this resulted.in consider-
able inconvenience to himself as he had to drive to his destination
without sleep. This latter fact can have no bearing on our
decision. It was the Grievor's position that as he had earned
the lieu date requested while on the third shift, he should be
able to take it on that shift, pursuant to his understanding
of Article 19.04.
One of Hr. Jones' additional reasons for denying the
Griever's request related to the fact that the Grievor was, at
the time of the requested lieu date, scheduled to work the
third or night shift. It was bir. Jones' position, as is confirmed
by the notation opposite the indication of refusal of lieu day,
that lieu days "cannot be granted on the third [night] shift."
&;r. Jones explained that this lias a response to staffing pr-oblems
experienced on that~ shift. The Grievor, while acknowledging the
e,:istence of such prcbl~ms, took the pcsition that the problem
had been created b) the Zm?lc):er and any perceived understaffing
3roblems could be easily ri-m*died by a par-t-time replacement.
In further support of his position, the Grievor referred
us to a number of examples where the lead time for lieu day requests ..,
were less than two weeks and the requests were, nevertheless, allowee
See Exhibits 10 (4 days) and 11 (7 days). In the case of Exhibit
11, the request was by an employee on the third shift. In
allowing the request the employee was, however, reminded:
II . . . this does not signify any change in the present
institutional policy Of not granting lieu day on the
[third] shift. Again, may I remind you that section
18.1 of the Collective Bargaining Act (sic) R.S.O.
1980, states every Collective Agreement shall be
deemed to provide that is (sic) the exclusive
function of Management to manage."
I do not regard the examples as helpful in this case, as they
are all equivocal in indicating the reason for a change in
the Employee's position.
Mr. hones testified as to the practical necessity of
maintaining the rule limiting the granting of lieu days to
employees on shifts one and two. He also testified that the
words "approximately two weeks" found in the memorandum of
July 21, 1982, were inserted in error and should have remained
as "no later than two weeks," as in the memorandum of January
6, 19S2. If this were the case I would have expected a written
correction to have been issued or, at least, some formal
communication liith re?resentatices of the Union, as appears to
have jeen the case in t'ne development of the guidelines, as
testified to by h:r. Jones.
It t;as b;r. Jones' further testimony that the rule restrict-
ing the taking of lieu days to shifts one and two was arrived.at
after consultation wi th Union representatives, based on a trade-
off,uhereby certain Vnion scheduling requests were approved.
~~ rezal-ded this Egreement as a "gentleman's agreement." The
";F:-".ny.~,?ts" ,ieL-e a;Jpa:-ently :?ver reduced to +;ritten form nor
“,
was
the
the alleged rule
first two shifts
- 15 - - 15 -
concerning the restriction of lieu days 'to concerning the restriction of lieu days 'to
contained in any minutes of the meetings. contained in any minutes of the meetings.
Mr. Jones stated that he also verbally reaffirmed the fourteen
day notice requirement to the Union representatives and received
no complaint. In cross-examination he explained that the fourteen
day notice requirement might be waived if extra staff were
available so as to permit accommodation of the request. He stated
that, in considering any request, his main consideration was
meeting manpower needs and where he had available staff and the
financial means to accommodate a request1 otherwise not meeting
the guidelines, the guidelines might be waived. As this was not
the case in the'matter beforehim, the request was denied.
The position of the Employer is that the Tremblay award
was wrongly decided and that this Panel of the Board shoul,,d not
follow it. As in the Tremblay case, the Employer relied upon
the provisions of Section 18(l) of the Crown Employees Collective
Bargaining Act ( the Management Rights Provision) as furnishing
it with the exclusive right to schedule lieu days and in all
other respects incorporated the submissions of the Employer in
the Tremblay case.
In the case of X. BUSS, 341/83 (R. L. Kennedy) it
was stated, at p.6:
*‘the proper interpretation and application of Article
10.4 has already been considered by this Board in Tremblav,
185/81. An ;9plication for Judicirl ‘ieviev of that decision
instituted by the 33piC~er ‘<CC tismnissed by the Divisional
CCUZiT on SegtemSer 2, 1983. The interoretation issue vith
res2ect to ,k,rtic!e 19.4 i;cu>d, therefore, a?peer to Se Settled
. . . - 16 -
by tl;fs Board, and for the purposes of this Arbitration, we
accept the interpretation of the Article as set out in
Tremblav. I would agree with this statement.
In the Buss case it was also stated at ~~-6-7-8:
“It wes the psition of the Union that in Artic-le 19.4
. there were only two ?rc-conditions to the right of the Employee,
in essence to specify when compensating leave is to be taken.
Firstly, there had to be no agreement between the parties 2s to
when it would be taken. Secondly, the time specified had to be
in conjunction with the employee’s vacation le2ve or’regular
davs off. . It ~2s argued that those ore-conditions had been met
by the Grievor on April 7th, and there was contained within the
lzncuege of’Article 19.1 no qualification Or requirement for
lead time with respect to the specifying of the dates for
compenseting leave. It was further argued by the Union that in
any event if it were necessary to determine what was re2sonable,
same should be done only upon consideration of the feet that the
Griever' s weekend h2d been rescheduled on April 5th 2nd chat
vhat constituted a reasonable period of notice had to take into
cchsider2tion the degree of notice which w2S given to the
Griever with respect to the scheduling change.
“Cocnsel for the Employer made reference to Section 18
(1) of i’he CrCcn s?loyees Collective fjargeining ;ct, X.S.O. --
1980 c. 106, 2nd argued th2t unless an employee ,under Article
is.3 i;ere req,uired to give reason2ble notice of the em.ployee’s
,
: intention to take
manage. the operat
compensating leave, the Employer’s right to
on under Section 18.1 would in substance be
abrogated. It was further argued that within the language of
hrticle 19.4 and the specific holdings in the Tremblav decision
a reasonable notice period *as clearly contemplated with respect
to tt,e scheduling of that leave. Counsel fcr the’ Employer
further argued that it would be unreasonable to interpret
Article 19.4 on a basis that Gas not feasible in an
. aomlnlstrative sense, and that for that reason also the Article
should be interpreted as requiring a, reasonable period Of nOtiCe
from the employee as to the scheduling of the compensating
leave. it ‘was argued that the section becomes totally
unworkable in practice without the requirement of reasonable ,
not ice, and that in substance a right on the part of the
<employee unilaterally to schedule the compensating leave would
orevent the Employer from keeoir ,g the Institution properly’
staffed.
11 It is the view cf this Board that consistent vith the
language of Article 19.4 and with the practical realities of the
administration and application of the Collective Agreement,’ the
SnFloyer must have reesonable no
tice of the exercise by en
employee OS his rights under Article 19.4. In addition, it
clear fro.m the language of Article 19.4 that the employee’s
right to specify the timing of the’ compensating leave comes
s
nto
effec* c only. at such time 2s there has not been an zgreement a’s
to vhen such time is to be taken. it is our view that before i
c2.n be considered that there has Seen a failure to agree on the
timing, ‘;.?ere must be at leest some discussion between the
;a.r:ies i,~ an atter;$pt t0 rezch suC.5 2.n rgreenent. ”
t
, . - 18 -
i. 4.
In the case before us, I would find that there was such
a meeting as was contemplated in the Buss case, and that it
, involved the Grievor and Xr. Jones (in his cacacity as the
.representative of management). In the circumstances I also
find that the period of twelve days notice was reasonable notice.
There was no evidence from the Employer that it was not. It was
not the Employer's position that twelve days notice was unreasonable
on the facts of this case, but that it could unilaterally create
timeliness guidelines for giving notice. Even if the Employer
could unilaterally impose a notice period, as it attempted to do,
I would find that the period was "approximately two.weeks" as
set out in the Employer's memorandum of June 21, 1982, and that
the Griever had complied with this requirement. ,I would, however,
agree with the further statements contained in the Buss case, - /
at pp.8 and 9.
"'on the
evidence before US on this grievance, such effort at reaching
agreement did not take place prior to April 7th, and therefore
in determining Ghat is a reasonable period of notice, the
starring point can be no earlier than April 7th. In the
c:rcumstances of scheduling in
prticclar problems of schedul
outlined to us, ve cannot find
notice was Given by the employ
the Institution and the
ng on ,deekends, xhich were
on the evidence that reasonable
e, and therefore we cannot find
that there has been a-breach on the part of the Employer of its
obligations cnder Article 19.4. /- We do not propose to enunciate
any Guidelines or directions as t0 what vcu!d constitute
ieESOnE!?le notice since, in cilr view, what is reasonable mcst be
- 19 -
determined in light of the particular circumstances of each
individual case. We would further note that in the di&,-tive
issued by Vice-Chairman Verity in the Tremblav c.ase, the .
employee was required to exercise his discretion in the
scheduling Oflieu days within a reasonable time after the
failure to reach a mutual agreement. It iS our view that it i
impiicit in that language that what constitutes "within a
reasonable time" sets limitations both as to how much notice a,
how little notice must be given in making the scheduling
decision. "
Inthis case, it was manifest that the Grievor had notified the
Employer of his choice of the lieu date which he desired and
I find he did it within a reasonable time, even as that time
must be expressed in Mr. Jones' memorandum of July 21, 1982‘.
It was also decided in the Tremblay case that the Employer
cannot promulgate "guidelines for the implementation" of
Article 19.4. In dealing with the rationale of the Employer
for denying the employee's request, which rationale was seen
to have merit, it was observed, at p.13: "...it has no relevance
to the interpretation of Article 19.4."
In accordance with the declaration in the Tremblay case,
it was not open to the Employer to unilaterally impose eXClUSiOnS
for employees on the third shift to the exercise of their rights
under Article 19.4. The Union could (Article 7), and did,
(Article 19.41, barGain for the right which the Grievor sought
to exercise. As in the Tremblay case, after denial of the
Grif\:or's request for a lieu day on March 20, 1983, the matter
remaining unresolved after discussion, the discretion to choose
. ,~ I: - 20 -
,.. 3,
the lieu day reverted to the Grievor. The Grievor insisted upon
his original request for March 20, 1983; as a lieu day and did
so within a reasonable time and therefore was entitled to that
date pursuant to the provisions of Article 19.4. In this regard,
I agree with the.reasoninq in the Tremblay case.
Mr. Jones may have believed he had a "gentleman's
agreement" with the Union with respect to how Article 19.4 would
operate. In the light of the evidence, I find this to have been
a mistaken view which he chose not to properly verify. In any
event, as was emphasized in the Tremblay case, it could not alter
the clear language of the collective agreement. If that end was
to be achieved, a more formal written agreement would have to
have been entered into.
Accordingly, and for the above reasons,our Award is that:
1. The order in the Tremblay case represents the,proper inter-
pretation and application of Article 19.4.
2. Any unilaterally promulgated guidelines by the Employer
which derogate from the rights of Employees under Article
19.04, as interpreted in the Tremblay case, are invalid.
3. In particular, the guideline attempting to limit the right
to take a lieu date under Article 19.04 to employees on
shifts one and two is invalid.
4. As to the validity of the guideline requiring that a request
for a lieu date be made "appr-osimately two weeks prior to the
day requested as time off, " such guideline need not be dealt
with by US as this question is not in issue, the notice of
the Grie\Tor havi!y been found to comply with this requirement.
As this is an individual qrievance we ought not to encage in
;
.5 .r - 21 -
_ . - r an exercise leading to a declaration which is unnecessary
to the resolution of the grievance. If the guideline was,
as argued by the Employer, one requirinq.two week's notice,
we would regard this, as in the case of the imposition of
the guideline limiting the granting of lieu days to the
shifts one and two,as being invalid as derogating from the
meaning of Article 19.04. This does not mean, however, that
in a proper case two weeks notice might not be reasonable.
In conclusion, I would emphasize that I cannot fault
the Employer for any of its concerns and I do not wish this
Award to be interpreted, in any way, as representing a
criticism of the Employer. Ne merely find that its view of
Article 19.04 is incorrect and that, contrary to its perception,
no binding aqreement had been arrived at with the Union to enable
the Employer to depart from the limitations placed upon it under
that Article.
DATED AT London, Ontario
this 31St day of July 1924.
El . 3. Gorsky
Vice Chairman
H. Sirnor!
J . I,lorrow
i.Iember