HomeMy WebLinkAbout1985-0791.Pehike.86-05-01.,- -- .
Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
,I
Before
THE GRIEVANCE SETTLEMENT, BOAR0
IE‘cPhv”E~ rrspe-osss
791 ia5, 792185. 793185,
794185, 79ua5. 907 185, 946185, 1405m
OPSEU (Linda Pehlke) Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
Before: R. J. Roberts Vice-Chairman
S. J. Dunkley Member
D. A. Wallace Member
For the Grievor: R. Anand
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer: C. C. White
Counsel
Hicks Morley Hamilton Stewart & Storie
Barristers & Solicitors
Date of Hearing: February 25, 1986
INTERIM' DECISION __-___- -----e-m
At the outset of the hearing in this matter, it was
indicated that the' Employer had a preliminary objection to
jurisdiction, and that both parties had agreed that this pre-
liminary objection should be determined prior to any hearing
upon the merits. We granted this request, and,the parties there-
upon provided the Board with a brief narrative of the circumstances
giving rise to the grievances at hand.
This narrative indicated that the qrievor is employed
.as a eivilian radio operator at the Goderich Detachment of the
Ontario Provincial, Police. In this Detachment, she is one of
four persons holdihg the classification of Radio Operater 2. In ,.
addition, there is a single Radio Operator 3, who functions as
a relief operator covering for those who are absent by reason
of illness, holiday or vacation.
On occasion, it becones impossible to provide- the necessary
shift coverage by using this single relief operator. When this
happens, the Detachment Corunander attempts <to cover the Radio Rocm
by filling the open shift with an available Ontario ?-ovincial
.Polioe Officer. If no Officer is available, a Radio Operator 2
is assigned to work the shift on an overtime basis.
The grievor cbjected to the practice of fiilinq the
b~aca.nt shift with an available Officer. The civilian radio operzars
are zerbers of the Ontario Public Service Ex.?loyees Lr.ion ahile
1
3.
the Officers are members of a different group,'the Ontario
Provincial Police Association. It was the position of the
grievor that the.practice of the Employer deprived her and her
colleagues of bargaining unit work which otherwise would have
been assigned to them on an overtime basis. She filed eight
separate grievances relating to eight different.periods of time
in which an Officer was assigned to work as a Dispatcher. The
parties agreed that all of these grievances were to be determined
together.
In support of its preliminary objection, the Employer
made three submissions. The first of.these was that there was
no.basis in the Coilective Agreement for the grievor's claim because
the overtime provisions of Article 13 thereof did not give employees
any right to work overtime? Secondly, it was submitted that a
determination in favour of the Employer upon its first submission
was conclusive against the grievor because the‘grievances kfere not
framed widely enough to sup,port a general complaint of bargaining unit
work being assigned to Police Officers. Finally, it was submitted
that even if the grievances were susceptible of the latter inter-
pretation, the decision of management to assign Officers to work
as Dispatchers could not be reviewed at arbitration because it
involved the exercise of 'the Err.ployer' 5 exclusive management rights
under Section 18 (1) (a)*of the Crown Ep:loyees Collectilre Sar;ainiz5
Act. V:e will deal with these submissions seriatim hereinbelc~. -
I. T!le Otv2rtine Trovisions of Article 1: of the Collnctive .i:reenent:
4.
Tkere.seems to be little doubt that the overtime pro-
visions of Article 13 of the Collective Agreement do not give
the grievor any rights which could be said to have been violated
by the Employer in the circumstances of the present case. Article
13 reads as follows:
"13.1 The overtime rate for the purposes Of
this Agreement shall be one and one-half
(l-+) times the employee's-basic hourly
rate.
13.2 In this Article, 'overtime' means an
authorized period of work calculated
to the mearest half-hour and performed
on a scheduled working day in addition
to the regular working period, or per-
formed on a scheduled day(s) off.
13.3.1 Employees in Schedules, 3.7 and 4.7 who.
perform authorized work in exces.s of
seven and one-quarter (7-L) hours or
eight (8) hours as applicable, shall be
paid at the overtime rate.
13.3.2 Overtime shall be paid within two (2)
months of the pay period within which the
overtime was actually worked.
13.4 Employees in Schedules 3 and J who
' perform authorized work in excess of
seven and one-quarter (i-k) hours or
eight (8) hours as applicable, shall.
receive compensating leave of one and
one-half (l-4) hours for each hour of
overtime worked, at a time mutually
agreed upon. Failing agreement, the
ministry shall reasonably determine :he
time of the compensating leave.
i3.j Where :~here is mutual a;ree,men:, nmolcyees
may receive congensazin; i,?ave in iieu of
oay a: the overtlme rate or may deceive
pay at the overtize ra:e in lieu of
compensating leave.
5.
13.6 Compensating leave accumulated in 'a
calendar year nhic.h is not used before
March 31 of the following year, shall
be paid, at the rate it was earned.
Effective March 1, 1978. the March 31 date
may be extended by agreement at the local
or ministry level."
It can be seen from the foregoing provisions of Article
13 that it does not expressly give employees any right to over-
time, nor does it even require a rudimentary form of overtime
equalization.. It is merely definitional in nature.
This was recognized in the previous award of the Board
in Re Changoor and Ministry of Transportation and Communi-
cations (19831,. G.S.B. t526/82 (Verity). In that case, the
Board rejected a claim that management should have honoured .'
an oral ,understanding to allocate some overtime hours to the
grievor. The Board said :
We are of the opinion that the breach of an oral agreement is beyond the Board's juris-
dication and hence the matter is inarbitrable... (citing cases). In addition, we are unable
to find that Article 13 is applicable in the instance Grievance. The provisions of that Article entitled "Overtime" deal with overtime as defined by 13(2) which is both "authorized". and "performed". While it is true that in the instant Grievance the Board has made the deter- mination on the evidence that overtime was authorized in principle by a Management representative, it was in fact not scheduled
and clearly no overtime work was performed 'by- the Grievor. Article 13 deals with pay and
compensating leave for overtime act,Jally worked Id. 'at p. 8. . * *-
.
5 6. '
It was concluded that unless overtime was both authorized and
performed, Article 13 was not applicable.
Counsel for the Union submitted that by virture of
its presence in the Collective Agreement, Article 13 should
be interpreted as conferring upon members of the bargaining unit the
rightto work overtime hours in respect of bargaining unit work.
In support of this proposition, we were referred to Re Thomas,
Frost and Carlson and the Treasurey Board (1971); Public Service
Staff Relations Tribunal #166-2-467 (Arthurs) amd Re McGuire
and Ministry of the Attorney General (19811, G.S.B. #207/78
(Swan). Neither of these cases, however, appears tosupport
the case for the grievor . . ,
In Re Thomas, Frost and Carlson, supra, an overtime
provision which merely provided a method of calculating payment .
nevertheless was held to form the basis for an affirmative
obligation to assign work to. regular, rather than casual employees.
This decision did not however, turn upon the mere presence
of the overtime provision in the Collective Agreement. There
was other evidence to indicate that the parties "contracted
on the basis that there was some affirmative obligation to
assign work to regular, rather than casual employees." 3,
at p. 2. There was no such evidence in the present case.
,
As to RP ?IcGuire, suora, it see?.5 that this case
invcl.~ed~an issue of interpretation far rer;cved frc:: the
c r '1 7- ~-?pf?. Tf?nro. ! t 'WC? s 5 'L! !,‘V 1 t t P ,:! '5 i' z 'Z '.: r, c " 1 f c r t 5 P
,
.,’
7.
employer that a 'vacany" within.the job posting provisions
of Article 4.1 of the Collective Agreement did not occur until
management decided that an unoccupied position should be filled
by promotion. Until then, the position did not have to be
pos"ted'but could be filled, in management's~discretion, by
lateral transfer or demotion. After exhaustively considering.
the issue, the Board concluded that the plain'meaning of "vacancy"
was contemplated in the Article and, accordingly, the job had'
to be posted under Article 4 "once the decision to 'fill the
job was made". & at p. 17. In the present case, the problem
is one of application, and not interpretation as in Re McGuire.
In light of the above, ,it must be concluded that
‘ the overtime provisions of Article 13 of the Collective Agreement
do not fetter the ability of management to assign work'outside
the bargaining unit; As in the private sector, some limitation
. might be "found to be implicit in the seniority, classification,
1 wage and recognition provisions" of the Collective Agreement:
otherwise, licence would be granted to impair the integrity
oft the bargaining unit. As has generally been the case in
the private sector, however, we take "the view that the overtime
provisions in the agreement do not limit the assignment of
bargaining work to non-unit employees". 2
1. Brown and Beatty, Canadian Labour Arbitrations (2d), a^~ p. 221.
2. Id.
‘5
8.
II. The Question Whether the Grievance can be read as Embracing a Complaint that Bargainins Unit Work was
being Assiqned to Provincial Police Officers
All eight grievances were identically worded. They
stated, in pertinent part, "I grieve that I am being denied
the right to work overtime". It was evident from the statements
of the parties, however, that the core of the discussion in the'
grievance procedure was the question of O.P.P. Officers performing
the work of Radio Operators. Nevertheless, it was the submission
of the Employer that because the grievances were framed as narrow
claims for overtime compensation , they were not broad enough to
permit consideration at arbitration of the question whether manage-
ment had the ability to assign bargaining unit work to O.P.P.
Officers. '
In support of this proposition, counsel for the Employer
referred-the Board to Re Globe and Mail and the Southern Ontario
Newspaper Guild (1985), unpublished award (Burkett) in which
the board refu~sed to allow the Union to reach beyond a claim
for compensation to challenge the authority of mana,gement to
make a decision giving rise to the claim. The board rejected'
this attempt, stating:
The Company objected that there had been no challenge to the restructuring Lurin7,the crievar,ce
procedure and that the attempt by the Union to deal
with it at arbitration constituted an extension to the grievance. The Union characterized its challer.ce to the restructcring as a legal arg--en? in support of the grievance a5 filed. The pa.?el, with the Union nonizee dissentinS, made ar. ?r;l rsd.:lLng as follows:
9.
I . ..[Tlhe grievance, which has been drafted by a staff representative of the Union after discussion of the matter with the Company,
is clearly restricted to compensation and cannot be expanded to encompass a challenge to the restructuring itself. That is a separate
issue that cannot be characterized as a legal argument in support of the claim for compen-
sation. We are restricted to the matter raised,
which is a claim for compensation, and accordingly, we must find that we are without jurisdiction to deal with any challenge to the restructuring .
itself. . . . Id. at pp. l-2. ..i -
The board concluded,that it was without jurisdiction to entertain
the challenge to the restructuring because it was not raised in
the grievance procedure, and was a separate legal issue.
:
In the present case, however, the challenge to the
authority of management to assign work outside the bargaining
unit cannot be classified as a separate legal issue. In
the Globe and Mail case, supra, the separateness of the issue
was underlined by the undisputed fact that there had been no
challenge to the restructuring during the grievance procedure.
In the present case, the reverse is true. There could not
have been a claim for overtime compensation unless 'this challenge
was made and, as indicated in the statements of the parties,
their discussions proceeded upon this basis. Accordingly,
it is the conclusion of the Roard that we have jurisdiction
<q -. this arbitration to deal with tie L‘nion's challenqe 50 the
authority of management to assiqn O.?.P. Officers to perform
the <work of Radio Operators.
10.
III. Jurisdiction to Review the Merits of the Decision of
the Employer to Assign the Work of Radio Operators
Outside the Barqaining Unit:
It was the position of the Employer that under the
applicable management rights clause, Section 1,8(l)(a) of the
Crown Employees Collective Bargaining Act, management possessed
the exclusive and unreviewable right to assign any work to
any employee, regardless of the bargaining unit~of the latter.
We disagree.
‘.
As in the private se&or, there must be implied from
the seniority, classification, and recognition clauses which
apply 'to the members of the bargaining unit, a fetter up.on the
discretion of management to make such assignments. The exercise
of management's discretion in this area is reviewable for purposes
of deterkining whether it impaired the integrity of the
bargaining unit. Indeed, this Board undertook such a review.
in Re OPSEU (Union Grievance) and.Ministry of Transporation
and Communications (1985) G.S.B. #519/84 (Palmer).
In that case, the union grieved the assignment of
certain managerial employees temporarily to ?erform certain work
w>ich customarily had been performed by membe:s cf =5e barcair.ir,g
LIzit. The Board rejected a claim by the ec?loyer :iat the
merits of the grievar.ce were.inarbitrable.rj~ile agreeing t.iat
there was no basis in statute, the Collectiv? .Acreezent cr
~, $
11.
general arbitral jurisprudence for prohibiting the .mployer from
making such assignments, the Board concluded that it possessed
jurisdiction to determine whether the assignment was so
substantial --- i.e., intrusive upon the integrity of the bargaining
unit -- as to bring the managerial employees within the bargaining
unit for purposes of payment of union dues. The Board said, in
pertinent part: I!
[T]he thrust oft the Employer's argument was to the .' effect that the Union could not preclude the Employer from acting as it did, i.e., assigning managerial
personnel to work normally done by persons in the bargaining unit. That, in the opinion of this Board,
is not the issue in this case. For the reasons advanced
by the Employer, there seems to be no basis for this Board to prohibit the Employer from assigning the work in the way it did. . . In short, clearly, the Employer can do'this. When they do so, however, the Union claims that these people thus became bargaining .'unit employees covered by the Collective Agreement, this Board agrees with this point of view. :..Jd. at p.. 12.
EssentiaJly, it was concluded that the Board possessed jurisdiction
to assess the impact of such an assignment upon.the bargaining
unit, and characterize the employee as being within the barga.ining
L;nit when that impact was found to be substantial.
We recognize that this jurisdiction is far more limited
than that for which the Union argued in the present case.
The Union conkended that in light of several statutory provisions
,w.iose culumative effect was to prohibi: Octario Provi2ci2l
Police Officers from being members of an O?-CSZ bargaifiinc -xi:,
12.
the Board possessed jurisdiction to prohibit the Employer from
assigning them to perform bargaining unit work to such an extent
as to bring them within the unit. This was similar to a submission
whi~ch was made to, and rejected by,. the Board in the above
award. In that case, Professor Palmer stated:
I
To refer back to s. 1(1!(f) of the Crown Employees Collective Bargaining Act, supra, there by virtue of this legislation 'persons employed in a managerial or confidential capacity' are excluded from the
bargaining unit. It'seems self-evident that the
'mere m dixit of an employer is not dispositive of the issue of whether a person fits this description.
Clearly, such refers to a factual situation which exists in reality; once such a situation occurs the results contemplated by the legislation come into effect. . ..Id. at pp. 12-13. -
In other words, it was concluded that the mere say - so
of management regarding the status of a particular employee
did not determine his status under the prohibition of the statute:
rather, it was the status in fact of the employee. Accordingly,
Professor Palmer concluded that regardless of the "managerial"
status of the employees in ques.tion, they were not "managerial"
within the meaning of the-statute when they performed bargaining
unit work to such an extent as to bring them within the unit.
The same analysis wotld ho12 true upon a review of
rhe .;;.erizs of the prese?.t case. If it were to'be concluded
:ha: O.?.?. Officers were assigned i"ls?atcber d-ties to SVch
ar. axsent as to bring them within the c:?SZi' bargaining -nit,
t:qere ,nlould,not be any breach cf :?;;f s:r:t':~-r:~ Prc'hlbi:ion,
13.
because the individuals involved'would not, in fact, have
retained the status of O.P.P. Officers. Regardless of how
they were viewed by the Employer, they would have become
members of the OPSEU bargaining unit for the relevant period
of time, and as a result have become liable to the Union for
payment of union dues.
The preliminary objection is dismissed. The Board
has jurisdiction to review the merits of this case, at least
to the extent indicated in the body of this Interim Decision.
DATED,at London, Ontario, this 1st day of May
1986. n
D . .G. . kla;lace, Yemter