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HomeMy WebLinkAbout1984-0830.Davies and Lawless.86-05-13830/84 831/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Amalgamated Transit Union, Local 1587 (Eaton Davies & Michael Lawless) Griever, -and- '~>. . The Crown in Right of Ontario (Toronto Area Transit Operating Authority) Employer Before: R. L. Verity, Q.C. Vice-Chairman J. McManus Member I. J. Cowan Member For the Grievor: J. K. McDonald Counsel Sack, Charney, Goldblatt & Mitchell Barristers & Solicitors For the -Employer: W. J. M. Hanson Counsel Osler , Hoskin & Harcourt Barristers & Solicitors Hearing: January 28, 1986 DECISION ,i~ In this matter, similar.Grievances were-filed by Eaton Davies and Michael Lawless-in September~of 1984. Both employees received two days suspensions without pay for re.fusal to work assigned mandatory overtime on Sunday, September 16, 1984. management's rights provision of Artic The Grievandes alleged that management had violated the le 6 as well as Articles alleged discipline without all lost wages and 17.1 and 22.1. In sum, the Grievances just cause and sought compensation for ben.efits. Essentially, the facts. are. not in d~i~spwte. The Employ- er opepates a commuter bus service as part of 'co Transit's operations. The bus service functions at peak capacity during rush hour periods Monday to Friday of each week. Both Grievers work at Steeprock garage wh ich is a garage maintenance facility for the maintenance and repair of Go.Transit buses. The garage operates seven days a week, 'although weekend activity is, limited and in particular Sunday is a day of,minimal service. Normally, approximately 25% to 30% of garage personnel are required to work on weekends. The Griever Davies is a "Repair Mechanic" who has accumulated seniority since October, 1979. Michael Lawless is a .., "Bodyman" with seniority also dating back to 1979. Both employ-.. ees are required to work 40 hours per week, eight hours per day. The Grievers' normal work days are Monday to Friday and~regularly scheduled days off are Saturday and Sunday. Go Transit made the decision to participate, fully in the official Toronto-visit of Pope 3ohn Paul II (September 14 to September 16, 1984). Accordingly, all 186 Go Transit buses were placed.in operation on those dates. In addition, Go Transit .,. assumed responsibility for the maintenance and repair of all out-of-town buses. In a Memorandum dated August 29, 1984, the ~Employer requested employee volunteers for weekend overtime assignments dur ing the Papal visit. The Memo read a's follows: "Work Schedule for September During Papal Visit The Papal Visit scheduled for 14th September', 1984 will place a heavy demand on transporta- tion services supplied by GO Transit. The Jus Operations Section will be operating most of the active fleet on the above dates. It will the'refore be necessary for the Bus Main- tenance Section to supply adequate services during that period as well. We are requesting volunteers in the classifi- cations listed on the attached schedules to 'work on the dates specified. Employees on vacation, sick leave, WCB leave or-approved leave will be exempted. Overtime rates will, be paid to employees not normally scheduled to work on the subject dates." The response to that Memo, was somewhat less than over- whelming. Some 22 employees volunteered for overtime assignment on Saturday and Sunday, whereas the Employer required some 67 employees to work on those days. Management then exercised its rights under Article 22.1 of the Collective Agreement and issued a second Memorandum dated September 11, 1984 which purported to assign dray work to certain employees on mandatory overtime assignments based on seniority on '. Saturday, Septe~mber 15. and Sunday, September 16. Neither Griever was ,required to work on Saturday; how- ever, both were assigned in the September 11 Memo to work the day shift (7:30 a.m. to 4:DO p.m.) on Sunday,~Sept.ember 16. The Collective Agreement provides that an employee may be .exonerated from mandatory overtime where “there are sufficient grounds for excusing such employee".. The Grievor Davies told Foreman Dan Hopkins on September 12 that he would not work on Sunday. The following day, Davies again ap.proached his Fo~reman giving reasons for refusing to work, namely "family commitments" and "Church attend'ance;'. Th,e Griever refused to expand upon those reasons and refused to put them in writing. On Friday, September 14~, the Gri-evor again approached his Foreman, and in addition ~spoke with Garage Supervisor Andy Hoornweg. Mr. Hoornweg referred the matter to his supervisors and subsequently j on Friday, the Griever was advised that his request had,, been denied:;- The.Grievor Michael Lawless advised .Foreman Wayne Labbe on September 13, that he would not work on Sunday because he had to attend Church. The Griever refused to put his reque'st in writing: The Foreman wrote a Memorandum to Garage Supervisor Hoornweg on the Griever’s behalf.. On Friday, 'September 14, the Griever-was advised by Foreman Labbe that, ‘;C,hurch attendance" was not a sufficient reason to refuse the mandatory overtime assignment. Foreman Labbe advised-the Grievor Lawless that other employees who had requested exoneration had been declined, both . for reasons of “Church attendance" and for "unidentified personal reasons". Mr. Lawless asked his'foreman what would happen if he did not report for the mandatory assignment. Foreman Labbe replied ‘that it was not his decision to make, but in his opinion that the,consequences for a "nd-show" would be severe. \ .Neither Griever reported for work on Sunday, September 16, nor did either Grievor call in before the commencement of the Sunday shift. However, both Employees did report for their regu- larly scheduled shifts on Monday, September 17. Each Employee was questioned by his respective Foreman regarding the failure to report on Sunday. ,The Grievor Lawless expanded on his initial reasons to some extent when he told Foreman Labbe that he took the day off not only to attend Church but "for personal reasons". Foreman Labbe reminded the Griever Lawless 'that Church a.ttendance had not been accepted as.a valid re’ason and that if he was unable to attend work for personal reasons he was still required to call in.' : Both Grievers received two days suspensions without pay which were served on September 17 and 18. Essentially, there are two Articles in dispute, namely Articles 17.1 and 22.1. "ARTICLE 17 - DAYS OFF 17.1 The Employer shall schedule two (2) consecutive shifts off for each employee each week provided that it is recognized that due to the nature of the Employer's operation in providing a public.qervice, the scheduling of two (2)~ consecutive, shifts off may not always be feasible.. Nothing herein shall prevent shifts off being non-consecutive'if agreed upon between the employee and the Employer." "ARTICLE 22 - HOURS OF WORK 22.1 The normal hours of work for all regular full-time employees shall consist.of 40 hours per week and eight hours per d.ay. 'The normal hours.of work are stated solely for the purpose of calculating overtime, and shall not be construed as.a guarantee of any minimum number of hours to be worked. Overtime rates shall be calculated on the employee's base hourly rate excluding all bonus and premiums. Overtime shall be voluntary provided that if the Employer can- not fulfil its overtime requirements through volunteers, it may require employees to work overtime. In making any such compulsory overtime assignment, the most junior employee in the classification affected shall be assigned the overtime, unless there are sufficient grounds for excusing such employ- ee." Counsel for the Employer contended that management had not violated any provision of the Collective Agreement. Specifi- cally in the absence of particulars, it was contended ~that no sufficient grounds had been advanced to justify exoneration of either Griever and that the refusal to work constituted insub- ordination. Under Article 17.1, Mr. Hanson argued that "two consecutive shifts off"- meant shifts and not days off, and that . alternatively, the Employer had relied u'pon the feasibility prov.ision. Counsel for the Union argued that no d iscipline should be imposed upon either Griever. It was submitted that the Griev- ors had requested exemption for Sunday mandatory overtime for valid religious reasons and that there was 'no reason adva-riced by the Employer why t'hese re,quests were refused, given the fact that no Papal event was scheduled for Sunday, September 16. -~Mr. McDonald contended that the Employer violated the Collective the Griever Davies Agreement in assigning mandato~ry overtime to when none of the.four mechanics in the rebui 1 required to work o.vertime. In addition, Mr. d section,were McDonald'alleged that the Employer had violated the provisions of Article 17.1. -. .., The facts,of the present case do not involve any signi- ficant issue of religious freedom. Rather the case involves standard industrial relations issues within the contexts of the unique circumstances surrounding the first official Papal visit to the City of Toronto. The Board takes ar.bitral note of the fact that numerous groups and organizations as well as countless individuals parti- cipated to ensure the success of the Pontiff's visit. The Papal~ itinerary was, filled with ceremonial events in Toronto commencing the afternoon of Friday, September 14 and culminating with the Papal Mass at Downsview Airfor~ce Base-in the City of North York late Saturday afternoon and concluding with a Thanksgiving Service at the Metro-Toronto Convention Centre Sat~urday evening. The Pope left Toronto via Pearson International Airport for .~ Winnipeg at 7:30 a.m. Su.nday, September 16. There was no precedent for a visit of this magnitude, and no way of ascertaining in advance the number of spectators the various.events would attract. Simply stated, it was essential tha.t?a-public service such as Go Transit operate at full capacity b~uring all Toronto and area ce1ebration.s. We now turn to consider arbitral precedents and the issues in light of the un.ique circumstances of this case. The Board is unable to accept the Union's argument that in these circumstan~ces the Employer violated the provisions of Article 17.1 bye failing to give the Griever's two consecutive days off. While we would agree that the phrase "shifts off" employed is used in the sense of "days off" (as indicated in the heading of Article 17), we do not consider that it would have been feasible to have done so in the circumstance,s. Clearly, Article 17.1 gives management a certain latitude to determine the feasibility of any such arrangement. There is no dispute that~ under the provisions of .~ .Article 22 once a determination has been made that 0vertim.e requirem~ents cannot be filled through the use~of volunteers, management is entitled to schedule employees, eon the basis of seniority, : to work mandatory overtime. At least in the case of the Griever Lawless, the Board is required to,.determine whether the Griever had given "sufficient grounds" within the meaning of .Article 21 which would excuse his failure to report. cu lar facts. Iri assess ing the valid ity of discipline, recent Clearly, each case mustbe determined on its own parti- arbitral decisions stress that Arbitrators must attempt to balance the interests of both management,and the employee in determining whose position is more rea~sonable. See for'example Re. Printing Specialities .and Paper Prbducts.Union, Local 466, and, Cryovac Division, Grace Chemicals Ltd. (1972), 24~ L.A.C. 127 ' (Weiler). By way of analogy, Arbitrator Shime makes the following relevant comments in Re Canada Valve Ltd. and International Molders and Allied Wor,kers' Union, Local 279 (1975), 9 L.A.C. (2d) 414 at p. 415: "It is undoubtedly a valid consideration for the company when granting leaves of absence to consider its production. requirements and in the circumstances of this case, we are satis- fied that the company did consider those re- quirements. However, the discretion to grant leave of absence requires some objective con- sideration of the interes,t of the employee who makes such a request. The company's obliga- tion is to balance both the interest of the employee and the interest of the company..." In Re Canada Glaz.ed Papers Ltd. and Printing Specialties and Paper Products Union, Local 466 (19741, 5 L.'A.C. (2d). 355 (Beatty),, the Arbitrator states that in c.ases of refusal to .work an overtime shift, some Arbitrators have.viewed more liberally a reasonable excuse for refusal to work such an assign- ment than would be the case for a regular work shift. At p. 359, Arbitrator Beatty makes the following general comments: . . "Even within the context of failing to wbrk compulsory overtime what is to be properly regarded as a bona fide reason will vary depending on such additional factors as: (i) the amount of notice.given to the employee of the overtime requirement; (ii) the availabil- ity of other employees to perform the assign- ment; (iii) the amount of overtime and regular work performed by the employee immediately preceding the assignment in question; (iv) whether the work assigned is of such a criti- .cal nature as required to be ~performed at the time stipulated; .(v) whether the'assignment is within a sector of the plant which more regu- larly and usually demands a.n-0vertim.e commit- ment; and (vi) .the reason for or cause of the overtime assignment (i.e., employer negli- gence). Though not 'an exhaustive list, the factors above demonstrate that 'bona fide reason' is a relative and flexible concept which will vary according to such external circumstances." In the present case, the Board is satisfied that both Grievers made it clear to the Employer that they would hot report z for the mandatory overtime assignment. As indicated previously, the two employees refused to work on Sunday, September 16, 1964. Prima facie, this constitutes insubordination which is a disciplinary offence. 'An employee may have a valid excuse, but unless he .communicates that excuse in sufficient particulars; he cannot assume that he has .justified his refusal to work overtime. Neither Griever was prepared to explain his reasons other than in terms of general statements. D-avies alleged "Church attendance" and "personal commitments". Lawless relied upon "Church attendance" and after the fact advanced the reason of ,"person.al commitments~'. In our opinion, the Employer had insufficient information to determine the validity or genuiness ~of either request,. In balancing the interests of the Parties, no explana- tion was offered as to why the ~Empioyer scheduled 14 mechanics to work Sunday (as opposed to 9 mechanics scheduled to work on Saturday), when in fact the Pope left Toronto at 7:30 a.m. on Sunday. Similarly, no explanation was given why three bodymen were scheduled to work overtime on Sunday (as opposed to two bodymen who were. scheduled for Saturday overtime). The evidence established that employees who reported for work on Saturday had very little work to perform. That'fact could not have been anticipated, yet it might. have influenced~the number of employees required to report on Sunday. The evidence also establishes that there was no loss of production by the Grievers failure to report for work. Another factor to be taken into account is the late scheduling of weekend overt ime assignments for the Papal visit. In Article 19 of the Collective Agreement, there is a requirement for the posting of regular shift schedules "not less than 15 days in advance". The Papal itinerary had,been known for months .prior to the actual visi~t, and there would appear to have been no reason why the overtime scheduli,ng was on such short, notice. The circumstances surrounding the Davies case are quite different in any -balancing of the respective.interests. In our opinion, the Employer may well have violated the ~Collec,tive Agreement by requiring Mr. Davies to..work o.vertime in the first place. The board -does not accept the Employer's contention that three mechanics in classification 16 (the Davies' classification) with less seniority than Davies should not have been called upon ~to perform the mandatory overtime. Ar~ticle 22 makes no distinc- 'tion bettieen. repair mechanics and mechanics in the re-build section. .'The fact ‘r-emains that all-three mechanics could have performed the same work as the Griever Davies. In balancing the respective interests of the Parties, in our.opinion the Davies suspension was unjustified. He is therefore entitled to be compensated for two days lost wages ahy. together with lost benefits, if In the case of the Gr ievor Lawless, the mandatory over- time assignment w~as based on proper seniority considerations. In these circumstances, a penalty is appropriate for the offence of insubordination. In balancing the interests of the parties, the Board is influenced, in part, by the short notice given to the * Griever for the overtime assignment and the questZ:onab~le need for that assignment in the first place. 'In our opinion, this is the appropri.ate case to exer- cise our discretion under~S. 19(3) of the Crown Employees Collec- tive Bargaining Act to vary the penalty imposed. .Accordingly, the Grievor Lawless shall receive a 1 day suspension and shall be compensated, without interest, for all other los,t wages and-'bene- 'fits. DATED at Brantford, Ontario, this 13th day of May, A.D., 1986. -. . . RiV;,iL"IJIIe-Chairman, . 3 ..McManus - Member "I dissent" (see attached) I. 3. Cowan .- Member DISSENT i I I ._ be- G.S.B. #830/84, & 831/84 While I have no difficulty fin agreeing with my colleagues in their assessment of the evidence concerning the lack .of work for those employees required to report for work 'on Sunday as mentioned on page 11, nor the fact that the employer seemed to be inordinately tardy.:in posting the schedule for weekend work as indicated on page 11,~ nor their concerns regarding Mr. Davies' seniority visa vis that of the rebuild mechanics mentioned on page 12 I would, nevertheless, have simply reduced the suspension to one day for both grievors. There is no doubt the employer was entitled to schedule overtime in accordance with-Article,.22.1 of the Collective Agreement and in refusing such overtime both grievers. were guilty of insubordination as indicated by the majority at page 10. In the interests of order in the work place deliberate refusal by employees to obey the legitimate instructions of the employer must attract a penalty appropriate to the circumstances. . .