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HomeMy WebLinkAbout1985-1011.Snider-Vandekerckhove.87-01-14Before: IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Molly Snider-Vandekerckhove) Griever - and - The Crown in Right of Ontario (The Ministry of the Solicitor General) Employer M.R. Gorsky, Vice-Chairman .I. Best, Member W.A. Lobraico, Member For the Griever: L. Rothstein, Counsel S. Elgie, Counsel Gowling and Henderson Barristers and Solicitors For the Employer: M. Milich, Staff Relations Officer Staff Relations Branch Human Resources Secretariat Hearings: August 29, 1986 November 21, 1986 - DECISlcN The Grievor has been employed as a civilian Radio Operator by the Ministry of the Solicitor General since July 14, 1980. Her grievance, dated September 20, 1985, was based on an allegation that she had been unjustly disciplined by her superior, Corporal Terry Sneddon, on or about September 17, 1985. . The act of discipline complained of was the alleged transfer of the Grievor from the regular shift rotation (2 days, 2 afternoons, 1 midnight, 2 rest days) to the swing or relief shift (8:OO a.m. - 4:00 p.m., weekends off;subject to being required to relieve employees who are ill or on vacation). It was agreed that Radio Operators usually regard the swing shift as a less desirable one than the regular shift. It was further agreed that if this Board found that the transfer of the Grievor from the regular shift to the swing shift was for the purpose of imposing discipline, there was no just cause for doing so, and, in that case, the grievance would succeed. The position of the Employer was that the *'alteration of [the Griever's] shift schedule was not a disciplinary act." It was the further position of the Employer that the transfer of the Grievor .to the swing shift [complied] with a long-standing practice at [her] work location." The position of the Union was that Corporal Sneddon, the Communications Supervisor at #2 District, London, since May 5, 1980, who was then Griever's supervisor, was extremely upset as a result of certain alleged actions of the Grievor which were said 2 z to have occurred on September 2, 1985. The Grievor, while driving to Work on Highway 401 for the day shift, observed certain signs which had been affixed to the highway overpasses. These signs, which contained sexually explicit messages, represented traffic hazards, in the view of the Grievor, as'she noted a number of drivers slowing down or braking in an apparent attempt to read the signs. Upon arrival at work, the Grievor -told the desk officer of what she ,had seen. This, she said, was a result of her concerns that the signs created a safety hazard. According to the Grievor, some time later, during that morning, a complaint was received (the Grievor did, not recall from whom or in what manner) concerning the signs referred to. The Grievor was evidently still upset and discussed the matter with Ms. Lorie Brown, another civilian Radio Operator, who, in turn expressed her'concerns. The Grievor testified that Ms. Brown had recalled a similar incident the year before when an officer, Corporal Cottingham, had called Security at the University of Western Onartio, to have the signs removed. It appears that it was generally assumed at #2 District that student &anksters had posted the signs. The Grievor was upset at the apparent lack of initiative being taken by the desk officer, who gave no indication of his intention to dispatch a car to deal with the situation. Her Iupset was even greater when, between one-half and one hour later, she observed, two. or three officers in the front lobby of the building housing the Unit, watching a number of people attaching 3 : I a similar sign at the Wellington* Road entrance to Highway 401. In the Griever's opinion, the officers were.treating the incident as "a bit of a joke." The actions of the officers, were, in the opinion of the Grievor, observed by the then desk officer, Constable Jerry Davis, (according to the Griever) who appeared to view the matter in the same way. Later that day, Corporal Bill Litowski, who was then off- .' duty, entered the Unit. At that time, the desk officer (now Gary Berdon according to the Griever), stated that he wanted an O.P.P. vehicle to be dispatched to attend to the matter of the signs. Constable Berdon testified that he was the desk officer earlier that day, as ' well. The Grievor testified that she dispatched a vehicle and acknowledged that she likely made some comment to Ms. Brown and Constable Berdon relating to the fact that the previous desk officer (Constable Davis according to,the Griever) had been little concerned about the same matter earlier that day, and that she had some difficulty appreciating what the "fuss" was about now * '\, Because of the agreement of the parties, it is unnecessary to determine whose recollection of the above events is more exact. It is sufficient to note that Corporal Litowski regarded the Griever's behaviour, which had been reported to him by Constable Berdon, as being unacceptable, and he was quite upset. He communicated his concern to Corporal Sneddon, who was also very upset. Corporal Sneddon did not deny that he was upset by the conduct of the Grievor. In particular, Corporal Litowski was 4 . upset when he heard from Constable Berdon, that the Grievor had questioned the Corporal's right to be involved in the incident, as he was then off-duty. AS indicated above, I do not find it necessary to decide which version of the facts is more correct (those relating to the dispatching of the vehicle). I recount them merely to show how they were viewed by Corporals Sneddon and Litowski. Based upon the evidence furnished them they evidently . became extremely upset. I also find that when Corporal Sneddon spoke to the Grievor about the incident, he was upset and it is understandable that the Grievor would conclude that her transfer to the swing‘shift was a response to her alleged actions on the morning of September 2, 1985, as they were viewed by Corporal Sneddon. Corporal Sneddon attempted to play down the extent of his upset. I am, however, satisfied that he was much more upset than he was prepared to acknowledge. If this was all the evidence ., I would have to find that there was no other resonable explanation,for Corporal Sneddon's'behaviour than an intention to discipline the '. Griever for her behaviour on September 2, 1985. For the Employer, it was submitted that there was 'a long standing management practice whereby the Radio Operator with the least seniority would be assigned to the swing shift and, as~the Griever was that employee on September 17, 1985, she was merely required to assume her correct shift assignment. If there was no other evidence, and'the Employer's position was correct, it would be difficult to find for the Grievor, who could not take issue j 5 r . with the Employer complying with a reasonable long'standing practice. This was not, however, all of the evidence. It was further submitted on behalf of the Grievor, that the long standing practice was not to assign the Operator with the least seniority to the swing shift, but to assign the most recently arrived Operator into the Unit to that shift. ff that were the case, the position of the Union would be strengthened. What this Board would be left with was clear evidence of Corporal Sneddon's being very upset upon learning of the Griever's alleged behaviour and her almost contemporaneous, transfer to an acknowledged less popular shift on the pretext that this was consistant with accepted practice. We must decide which practice was in force at the relevant times. The evidence of the practice was not entirely clear, however, it was acknowledged that as at some time in 1980 there was evidence of the incumbent of the swing shift being the least senior Operator in the Unit (Bernie Mildema). According to the Grievor, this occurred in October or November of 1980. The Grievor acknowledged that she was transferred to the swing shift in August of 1981 when Mr. Mildema was transferred to St. Thomas and Ms. Brown was transferred to London from St. Thomas. The Grievor testified that Ms. Brown had six'months greater seniority than she did. ~11 of the above is only consistant with the practice as claimed by the Employer. This practice was departed from when an Operator, Jim Branchflower, assumed the swing shift in January or February of 1932. Mr. Branchflower had seniority ? * 6 to the GKieVOK, It was acknowledged, however, that he was *- transferred to the swing shift, at his ‘request, fOK personal reasons. The GKieVOK testified further that around April of 1985, a civilian Radio Operator, Hugh MacDonald, then on the regular shift, retired and Mr. BKanchflOWeK went to the regular shift, no one then occupying the swing shift because of short staffing. The evidence was unclear as to whether the Operators . - had one of their number on the swing shift to July of 1985. There was evidence of at least one casual [non-classified) Operator being hired but there was no evidence of a "new [classi- fied] kid on the Sblock" being assigned to the swing shift as argued by the Union. The only example of a senior classified Operator being assigned to the swing shift was the case of D. Wilkinson, who was transferred to the Unit in July of 1985. The Grievor testi‘fied about the case of another classified Operator, M. Pineo, who was senior to the Grievor and who was transferred to London from St. Thomas in June of 1985 and who worked in London through the swmner of 1985, before Mr. Wilkinson's arrival. Mr. Pineo was assigned to a regular shift. Mr. BKanChflOWeK was, assigned the task of preparing the draft shift scheduled by Corporal Sneddon. Corporal Sneddon had a great deal of confidence in MK. BranChflOWer and, it would appear, approved of the schedules without much attention to review. Mr. Branchflower testified that he scheduled Mr. Wilkinson to the swing shift in accordance with his 7 _ understanding of 'the practice. It was Mr. Branchflower's evidence that-that practice was to assign the newest Operator in the Unit to the swing shift, even if he OK she had greater seniority than another Operator. His evidence, however, was absent any particulars. He referred to a Ms. Dower as occupying the swing shift in May of 1985, but acknowledged that she was a casual employee whose case would not affect the practice. . : In referring to MK. Wilkinson's arrival in the Unit, Mr. Branchflower testified that he assumed MK. Wilkinson would occupy the swing shift in accordance with the practice as he understood it: the-.most recent arrival occupied. the swing shift. On the evidence, the practice appears to have been to assign the junior employee, in terms of seniority, to the swing shift. Placing Mr. Wilkinson on the swing shift appears, on the evidence, to be the first time a senior classified Radio Operator was assigned 'to the swing shift unless he OK she requested that shift. If this were all the evidence, I would conclude that there '. was a practice of assigning the least senior classified Radio Operator to the swing shift (unless there was an unclassified Operator .on staff) and not the most recent Operator assigned to the Unit. I would also conclude that I could not view the transfer of the Grievor to the swing shift as disciplinary if that is where she would be working in any event. I would KegaKd the initial placement of Mr. Wilkinson on the swing shift as being in error and the subsequent assignment Of the GKieVOK t0 9 7 i evidence of a practice is that which supports the position of the Employer. Any evidence conflicting with the practice is related to a case where a senior employee requested the swing shift (Mr. Branchflower) or where the employee on the swing shift was non-classified (Ms. Dower). I am satisfied that Corporal Sneddon expressed his concern that Mr. Wilkinson (a senior employee) was on the swing shift and that this expression of concern was made in August of 1985, before the incident in question, and that MK. Branchflower, who acknowledged that the meeting might have taken place, simply forgot about it. 1 find that MK. Branchflower, given his erroneous understanding of the practice, scheduled Mr. Wilkinson for the swing shift and Corporal Sneddon approved the schedule without giving any real thought to the matter. Upon receiving Mr. Wilkinson's complaint, Corporal Sneddon raised the matter with Hr. Branchflower some time in August, when MK. Branchflower, in accordance with his honest, but erroneous view of the practice, pressed his view of the matter. I find that, at that time, and before the incident, of September 2, 1985, Corporal Sneddon indicated his intention to pursue the matter and was in no doubt as to what the practice was. A series of delays accounted for the settlement of the question of who should occupy the swing shift being postponed until after September 2, 1985. AS to Mr. Branchflower's motives in pressing for the retention of MK. Wilkinson on the swing shift: I believe he had misconceived the practice. Certainly, there was no evidence I 8 : i )- that shift as representing .a correction of then error. I can understand the feelings of the Grievor, who, given her understanding of the practice, being that held by Mr. Branchflower, would have every reason to conclude that she was being transferred to the swing shift as a punishment for her alleged behaviour, which she saw (and the parties agreed) was not a sufficient basis for discipline. , . This was not all the evidence. Mr. Branchflower testified that before Mr. Wilkinson’s arrival (and before the incident of September 2, 19851, he told Corporal Sneddon that he intended to place Mr. Wilkinson on the swing shift and that Corporal Sneddon agreed to this placement. If this were all the evidence, I would be suspicious of Corporal Sneddon’s motives in changing the shift of the Grievor in September, after the incident of September 2, 1985, having agreed to Mr. Wilkinson,being placed on the swing shift in late July 1985. Corporal Sneddon testified that in mid to late August of 1985, after Mr. Wilkinson's arrival, he had heard a complaint from Nr. Wilkinson about beings scheduled to work on a week-end because, as the swing shift Operator, he was required to work relief shifts. Mr. Branchflower testified that there might have been such a meeting but he could not remember if this had been the case. Mr. Branchflower testified that he had informed Corporal Sneddon of the practice of placing the newest Operator in the Unit on the swing shift and the Corporal is supposed to have agreed. Corporal Sneddon denies such agreement and maintains his view of the practice. The only historical 1. 10 : i i given by himself or any other Union witness to support the Union view. Nevertheless, he (and the Griever) believed it. No doubt he did no wish to disappoint the Grievor. As for Mr. Wilkinson, he, being "the new kid on the block," (as he was referred to by the Griever) would be stuck with whatever practice prevailed. Having reviewed all of the evidence, and concluded that the practice was as submitted by the Employer and that that practice , . had been brought to Mr. Branchflower's attention in August of -1985, by Corporal Sneddon, who did not accept Mr. Branchflower's suggestion as to the Union view of the practice, I am left with the conclusion that appearances can be deceiving if one has an incorrect view of the facts. Here, there was a practice that the least senior Operator would be assigned to the swing shift: that Operator was the Grievor. Furthermore, that practice was brought to Mr. Branchflower's attention by Corporal Sneddon, prior,to Sept. 2, 1985, when no animus could be said to exist on the part of Corporal Sneddon against the Grievor. In the light of these facts, the actions of Corporal Sneddon can be ,,seen to be non-disciplinary in nature. He was set on a course of action, prior to, September 2, 1985, to enforce a policy with respect to staffing the swing shift. In the absence of an accurate understanding of the policy and in the absence of an appreciation of Corporal Sneddon's concerns.as they related to Mr. Wilkinson being assigned to the swing shift in July of 1985, and the Corporal's intention to pursue the matter of Mr. Wilkinson's placement in the light of the policy, it is easy to see how the 11 .P . = Corporal's actions would be viewed by the Grievor and Mr. . Branchflower ,,as representing the imposition of a disciplinary penalty. In the light of all the evidence, I am not persuaded by the extremely able presentation of Mr. Elgie, that the Employer's action in placing the Grievor on the swing shift was disciplinary in nature. Accordingly, and for the above reasons, the grievance is denied. DATED AT London, Ontario this 14th day Of January, 1987 M. R. Gcrsky Vice-chairman , W.A. Lobraico, Member