HomeMy WebLinkAbout1986-0700.Hendrix.88-04-26BetWeC?n: -----__
Before: ------
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING 1x2
Before
THE GRIEVANCE SETTLEMENT ABOARD
OPSEU (Joe Hendrix)
Grievor
and
The c.cown in Right of Ontario
(Ministry of Transportation and Communications)
Emgloyer
P. Draper Vice-Cnairman
I.J. Tnomson Member
3.T. Collict MemDer
For The Grievor: --------------- M. Kuby
Counsel
Gowling & Henderson
Barristers & Solicitors
For rrhe Em?loyer: D.N. B~dci2iia.w -----------__--._ Staff i:?iticions Advisor
Miniscry of Transportation and
Communications
Hearing: ------- NOveni~ei 3, 1987
November 12, 1987
DECISION
The Grievor, Joe Hendrix, grieves that he has been “subject to the unfair
application of a rule” and requests that he be reinstated to the Employer’s
stand-by list. Despite the inaccurate reference to a rule, the subject
matter of the grievance is clearly understood by the parties and has been
dealt with throughout as a claim that the Grievor was improperly removed
from the stand-by list.
At the commencement of the hearing the preliminary objection was made on
behalf of the Employer that the Board does not have jurisdiction in the
matter. The grounds relied upon are that the assignment of stand-by time
is an exclusive function of the Emp!oyer within the meaning of Section IS(l)
of the Crown Employees Collective Bargaining Act (the Act); that the
grievance does not involve a claim of the kind .falling, under Section 18(Z)
of the Act; and that since there is no provision in the Collective Agreement
respecting the assignment of stand-by time, Section 19(l) of the Act,
which sets out the Board’s authority to hear and determine differences
between the parties arising from the agreement, is not applicable. : c
is argued for the Grievor first, that the Employer’s right to assign sttn::-
by time was not exercised in good faith and second, that Section 18(2)(c) of
the Act is applicable because the Grievor’s removal tram the stand--by list
was disciplinary in nature.
The relevant sections of the Act are:
18(l) - Every co!lective agreement shall be deemed to
provide that it is the exclusive function of
the employer to manage, which function, without
limiting the generality of the foregoing,
includes the right to determine,
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ia) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods
and procedures, kinds and locations
of equipment and classification of
positions; and
(b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are
subject to review by the employer
with the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a
board.
(2) In addition to ,any other rights of grievance under
a collective agreement, an employee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to the
governing principles and standards; or
(c) that he has been disciplined or dismissed
or suspended from his employment without
just cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement, and failing final determination under
such procedure, the matter may be processed in
accordance with the procedure for final deter-
mination applicable under section 19. R.S.O.
1980 C. 108, 5. la.
19(l) - Every collective agreement shall be deemed to
provide that in the event the parties are unable
to effect a settlement of any differences between
them arising from the interpretation, appli-
cation, administration or alleged contravention
of the agreement, including any question as
to whether a matter is arbitrable, such matter
may be referred for arbitration to the Grievance
Settlement Board and the Board after giving full
opportunity to the parties to present their
evidence and to make their submissions, shall
decide the matter and its decision is final
and binding upon the parties and the employees
covered by the agreement.
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The collective agreement provision on stand-by time reads:
15.1 - “Stand-by time” means a period of time that
is not a regular workifig period during which
an employee keeps himself available for
immediate recall to work.
15.2 - Stand-by time shall be approved in writing
and such approval shall be given prior to
to the time the employee is required to stand
by except in circumstances beyond the Employer’s
control.
15.3 - Where an employee is required to stand by for
not more than the number of hours in his
normal work day, he shall receive four (4)
hours pay at his basic hourly rate.
15.4 - Where an employee is required to stand by for
more than the number of hours in his normal
work day, he shall receive payment of one-
third (l/3) of the stand-by hours at one and
one-half (l-l/Z) times his basic hourly rate.
In a decision of this Board dated January 6, 1986, the Grievor was re-
classified from Maintenance Electrician to Services Officer. Within a
few months, the Services Officer position was eliminated, the Maintenance
Electrician position specification was revised to exclude inspector duties
and the Grievor was demoted to that classification. At the same time
the Grievor, who had been on the stand-by list for several years, was removed
from it. Another Maintenance Electrician, Brian McKenzie, was permitted
to remain on the list on condition that he enrol in an electronics course,
which he did. The third Maintenance Electrician in the group had asked
not to be on the stand-by list.
Article 15 of the collective agreement does not confer on employees any
right to stand-by time but simply defines the term and provides for
approvals and pay entitlements. It follows that in assigning employees
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to the stand-by list, the Employer is exercising one of its exclusive
functions under Section 18(l) of the Act.
In support of his submission regarding the absence of good faith, counsel
to the Grievor cited O'Brien, 1157/86. That case concerned the exercise
of the Employer's discretion in regard to leaves of absence under -
Article 54.1 of the collective agreement rather than the exercise of an
exclusive function under Section 18(l) of the Act. There is no provision
in the collective agreement referable to the issue raised by the present
grievance. Assuming, but not deciding, that the argument made is tenable
in such circumstances, the evidence would not, in any event, justify
the conclusion that there is a lack of good faith here. The Employer,
for reasons of economy and efficiency, has adopted a policy of assigning
employees in classifications below that of Maintenance Electrician to
the stand-by list. Their lesser skills are evidently sufficient and
suitable for the duties performed when employees on the list ar? called
out in emergencies. The condition upon which Mr. McKenzie was continued
on the list seems to us a not unreasonable one inasmuch as it is work-
related and would enhance his qualifications. Further, although there is
a conflict in the evidence as to what actually took place when the Grievor
complained about being taken off the list, we are satisfied that he had
the opportunity to return to it on the same condition as that met by
Mr. McKenzie.
The second branch of the argument made on behalf of the Grievor asks us
to find that the Grievor was disciplined for having initiated the success-
ful classification grievance referred to above. In Brown and Beatty,
Canadian Labour Arbitration, Second Edition at p.467, the statement is
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made that discipline is generally regarded as an employer response to
culpable behaviour that is amenable to correction. In Katina, 205/79,
the Board found the action of the Employer in removing an employee from
a stand-by list to be disciplinary in nature because it was dohe to
penalize him for an act of insubordination. There is no evidence before
us to suggests that disciplinary action was being taken against the
Grievor because of some alleged misconduct or that any prejudicial effect
on his employment record is intended by his removal from the stand-by
list. In our opinion, the case is not made that the Grievor has been
the object of disciplinary action.
In the result, we find that we are without jurisdiction to act in the
matter. These proceedings are therefore terminated.
Although the Grievor’s wage rate has been red-circled for the time being,
he has lost the classification awarded by the Board. Because of the
Exployer’s policy regarding assignments of stand-by time he has also
lost a source of earnings. An exception to that policy was made for
Mr. McKenzie. We recommend for the Employer’s consideration that should the
Grievor request to be restored to the stand-by list the request be granted
on terms comparable to those offered to Mr. McKenzie. Such a geiture
would impose no hardship on the Employer and would remove any perception
that the Grievor has been singled out for exceptional treatment.
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DATED at Cons&o", ONTARIO, this 26th day of April, 1988.
P. Draper, Vice-Chairman
1.J. Thomson, Member -