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HomeMy WebLinkAbout1985-0701.Bowes and Przychodzien.86-11-05‘;.:‘:: ‘,,“: : IN THE MATTER OF AN ARBITRATION - Under - THE,CROWN,EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between Before For the Grievers: For the Employer: Hearing OPSEU (Bowes, Przychodzien) - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Prof. R.J. Delisle .I. McManus- A.G. Stapleton C.M. Dassios Counsel Gowling & Henderson Barristers 8 Solicitors M. Milich Staff Relations Officer Staff Relations Section Management Board of Cabinet July 29, 1986 Grievers Employer Vice-Chairman Member Member . . 2 DECISION The qrievore, security officers in the Ontario Government Protective Service complain that they were each required to take the statutory holiday, May 20, 1985. The requirement was pursuant to schedules duly posted with sufficient notice per the collective agreement. Each would rather have worked the day, thereby gaining the monetary premium under Article i9 of the collective agreement, and also the right to bank the day for future use in conjunction with rest days. The qrievore recognize that section 18(l) of the Crown Employees Collective Bargaining Act qivee.manaqement the right to determine complement, organization and assignment. The qrievore arque, however, that management, is estopped by its past conduct from ineietinq on ite.etrict legal rights. The qrievor Bowes began work as a Security Officer with the Ministry in June; 1980. He teetifiod that he was notified by a posted eohedule on April 30,that he was scheduled to be off on May 20. He testified it had never happened to him before. The.. qrievor Przychodzien began work as a Security Officer in March, 1966. He testified that May 20, 1985. was the first time he had ever been told to take a holiday on a statutory holiday. From his memo of complaint to his supervisor (Exhibit 7) -it appears he was aware of the new scheduling at least a month before the holiday. He complains that he was discriminated against since others, lees senior, were allowed to work the holiday. Matt . . 3 O'Brien, Security Officer, President of Local 589, O.G.P.S., was first employed September, 1979. He testified that the previous practice was that if a statutory holiday fell on a regular working day the employee worked the day. He testified that had he been notified that management was going to change its practice he would have taken the matter to a meeting of the local and from there to the Central Negotiating Committee. _' . The Ministry called John Wood, Patrol Supervisor since 1975, and a member of O.G.P.S. since 1973. He has worked as a relief supervisor for most of the squads and also as a regular supervisor. He explained that sometimes they'd have'extra people on a shift.. For .exampile, when the legislature is not in session, security officers regularly there assigned would return to the line. He explained that, depending on the particular statutory holiday, there might be more wanting to qo on holiday than could or more wanting to work the holiday than was necessary: It would be necessary, at times, to schedule an officer off on statutory --.- holiday though he wanted to work and vice versa. He testified that since 1975,thie was not unusual. The supervisor would ask for preferences, try to accommodate all requests, but in the end, if need be, would dictate. Wood could not remember if he had ever scheduled Przychodzien off on a holiday though he had supervised him for a period of two years. While he had no specific recollection of scheduling particular persons off, he remembered the practice that, "if we had too, many people we'd ~ . . . 4 schedule the extras off on statutory holidayen. Superintendent Craig, Deputy Director and- later Director of O.G.P.S., from July 1982,to September 1985,deecribed the background that led to the issuance of a memorandum in October, 1984 (Exhibit 6). The memorandum to all supervisors directed that "please ensure that the maximum number of personnel are permitted to enjoy" the statutory holidays ,takinq into account the nminimum required strength at all poets as laid down." Craig testified that this memo was issued on his instructions following discussions with members of the financial branch over excessive overtime. Craig testified that he had . . informal discussions with Matt O'Brien reqardinq,*Oqettinq back on track with respect to the Collective Agreement." Craig and Senior Supervisor Kiernander set standards of minimum personnel required at the various poets. In scheduling employees off records were kept, beginning in 1982, (Exhibit 2) to make it as fair and equitable as possible. Craig saw the benefit as having the day off and if it came to a choice between employees who had been equally treated, the senior person would be given the benefit. Craig testified that he did not regard the memorandum of October, 1984,as effecting any change of practice or policy. We agree with the remarks of this Board in Fersueon I 78/82 (Jolliffe): _ ;i. - r . :. . : -1 _. . . 5 It is perhaps superfluous to add that the obvious purpose of Articloe 47 and 19 in the applicable agreement is to enable employees (a) to enjoy a statutory holiday, if possible, without financial lose, and (b) if it is not possible to take the day off, then to be compensated by way of premium pay and another day off, or the equivalent thereof.. It was never the design of such provisions to guarantee that work at premium pay will always be available on a holiday. The purpose of the applicable Articles is plain. The evidence in this case comes nowhere near establishing such an invariable practice or course of conduct by management which could reasonably be construad to have induced the union to.believe that the management would not insist on its strict legal rights. The basis of eetoppel by conduct has not been made out. The facts #at gave rise to eetoppel in Re C.N.R. Co. et al and Beattv et & (1981) 34 O.R. (26) 385 are quite different. Counsel for the qrievore conceded that this case rises or falls on eetoppel and we find that it falls. The grievance is dismissed. Dated this 5thday of November, 1986. ~&-5,& * R!&,'beliele, Vice-Chairman J; McManus, Member AL kd?&&L A.G. Stapleton, Member