Loading...
HomeMy WebLinkAbout1986-1157.O'Brien.87-06-26SETTLEMENT IN TER l4AT'hR OF AN ARBITRATION UNDRR TNE CROWN ENPLOYEES COUECTIVR BARGAINING ACT BRTUREN: BRFORR: FOR..TEE GRIEVOR: FOR THE RMPLOTRR: RRARING: BEFOKE TER GRIEVANCE SETTLRKeNT BOARD OPSRU (Il. O'Brien) Grievor TBE CROWN IN RIGRT OF ONTARIO Employer (Ministry of Correctional Services) J. Gande I. Freedman 8. Roberts Vice-Chairman Member Member R. Wells Counsel Gowling and Benderson J. F. Benedict Manager, Staff Relations .and Compensation Ministry of Correctional Services thy 7, 1987. . -2- DECISION This concerns a grievance for payment of special leave inaccordance with Article 54.1 of the collective agreement which states: A Deputy Minister or his designee may grant an employee leave-of-absence with pay for not more than three (3) days in a year upon special or compassionate grounds. The Grievor is requesting that two days of absence in January and February 1985 be considered as special leave and that his vacation and statutory holiday credits, against which these two days were 'charged', be restored. The Grievor, Howard O'Brien. lives near Adolphustown, which is approximately 20 miles from his work at the.Quinte Detention Centre. Mr. Meyer, the superintendent of the Centre, testified that other employees live even further from their place of work, some as much as fifty miles away. On Saturday, January 19 and Friday, February 15. 1985, the Grievor testified that he was unable to come to work because of severe weather conditions. On the first occasion he stated that he checked the roadway outside his house and found it impassable. He informed the supervisor in charge of this situation. Normally, the Grievor testified, he would have waited for a snowplow to clear the county road and would have gone in late. Apparently the supervisor, requested the Grievor to state definitively his intention -3- about attending work and, in response, the Grievor said that he would not be in that shift. On the.second occasion the Grievor actually left for work but, because of high winds and blowing snow, he found the roads impassable. He returned home. called the supervisor in charge, and advised him that he would not be in for work that day. The Grievor testified that he had never missed a day of work because of weather in the preceding seven years although he was late for work on one occasion. We heard no evidence of chronic or acute absenteeism by the Grievor. He also testified that local snow conditions could vary greatly in that part of Ontario because of 'lake effects' and it was ,possible for conditions in Adolphustown to be quite different from those in Quinte. The two absences were charged against accumulated vacation and statutory holiday credits. It was not until April 1985 that the Grievor filed a grievance. He did this after being informed, during a discussion in the staff room with other correctional officers, that'such a situation might be covered by the special leave provision of the collective agreement. This belief was apparently grounded, at least to some extent, in a policy of the Ministry of -4- Agriculture which employees interpreted as allowing weather conditions to be grounds for special paid leave-of-absence. The request for special leave was brought to the attention of Mr. Meyer, the superintendent, by Mr. Tocher, the security officer at Quinte. Mr. Meyer asked, through Mr. Tocher. for additional details. The Grievor provided some additional details of the weather situation . . . and Mr. Meyer rejected the request. Itbecame apparent during the testimony and cross examination of Mr. Meyer that the only basis on which he would have granted special leave was if .there had been some natural or other catastrophe associated with the weather or. the weather problem had been something of the magnitude of a hurricane. In other words, he would never have utilized the special leave provision of the collective. agreement if the only impact of the weather had been to prevent the Grievor from attending work. Time and time againMr. Meyer, in his testimony, emphasized that weather conditions were not an acceptable reason for,missing work and for receiving special leave. He stated this in verbal testimony at the hearing and his reply to the Grievor's request for the leave to be granted was "weather conditions do not apply". This decision-rule was reiterated in the formal response at the grievance procedure by Mr. Hunt who stated ‘, -5- "Article 54 of the Collective Agreement does not apply to weather conditions". The only times that Mr. Meyer recalled having agreed to such leaves were for clearly compassionate grounds - illness in the family, for example. It was also apparent that Mr. Meyer did not believe that the Grievor was unable to get to work on the days in question. Mr. Meyer testified, supported by attendance records, that other employees were able to get to work that day from places as far afield as Picton, Belleville and Kingston and that the only absentees were among those with chronic illness. Indeed. Mr. Meyer saw the very late grievance as a device by the Union to get special leave extended to cover poor weather conditions and was concerned, that it would then be used extensively for that purpose. Mr. Meyer took. no direct or indirect steps to check-out the Grievor's story. His belief that the Grievor was lying was based entirely on his own assumption that the roads would have been cleared and that the Grievor would have been able to get into work, albeit a little late. He did not interview the Grievor, nor do we have evidence that Mr. Tocher conducted a systematic investigation. He did not believe that, on the first occasion, the supervisor had pressed the Grievor to state whether he was coming into work or not. But Mr. Meyer did not even check this out with the supervisor concerned. . -6- Article 54.1 clearly states that management may grant special or compassionate leave. The Employer asks this Board to accept the argument that this means that Management has the unbridled, unfettered. absolute right to allow or deny such leave provided only that it has exercised its discretion in good faith. The Union, .on the other hand, asks this Board to find that this discretion must be exercised in a reasonable manner. The Union does not deny that management has the right to exercise discretion about whether someone should get leave or not but it contends that this decision must be reasonably arrived at and that the reasonableness of the decision is subject to arbitral review. In support of their respective positions, both parties referred to many cases relating to the application of criteria of reasonableness to articles.in collective agreements in general, and this article in this agreement specifically. Prior to 1981 and the Ontario Court of Appeal's decision in Metropolitan Toronto Board of Commissioners of Police v. Metropolitan Toronto Police Association (1981). 33 O.R. (2d) 476, arbitral jurisprudence had indicated that management had the duty to administer and interpret collective agreements in a reasonable manner (see, for example, Mr. Shime's decision in Re International Nickel .co. (1977), 14 L.A.C. (2d) 13). The Court, in Metropolitan Toronto Board of Commissioners of Police appeared to rule -7- against this doctrine of reasonable interpretation and administration. &ever, J. in Re United Glass and.Ceramic Workers of North America et al. and Libbev-St. Clair Inc. et al. 1981. 33 O.R. (2d) 760. followed the Court of Appeal's ruling in refusing to apply the doctrine of reasonableness to the review of a personnel department's decision to disallow absenteeism for unsatisfactory reasons. However, positions taken by the Court of Appeal in Toronto Printinq Pressman and Assistants' Union No. 10 v. Council of Printinq Industries of Canada (1983). 83 C.L.L.C. para. 14,050 (Ont. C.A.) .and subsequently by the Divisional Court in Re The Board of Governors of Fanshawe Colleqe of Applied Arts and Technoloqv v. Ontario Public Service Employees Union, Local 110 (January 1. 1984), unreported (Van Camp), suggest that while decisions made under a management's rights article might not be reviewable for reasonableness, such a restriction would not apply to then exercise of rights under other articles in a collective agreement. This led Vice-Chairman Roberts to conclude, in Jackson (487/83): . . . we retain the power to review against some standard of reasonableness the decision ~of management in the present case. The decision was not made under a management rights clause. It was made under Article 54.1 of the collective agreement. Nothing in Article 54.1 expressly empowered.management to exercise unfettered discretion in making a decision under the Article. Nor did Article 54.1 expressly forbid arbitral review of decisions thereunder" (at p. 10). The Employer asks this Board to overturn this jurisprudence completely. This would mean rejecting the findings of GSB vice-chairmenin young (220/79), Fioliano (19/80), Elesie (24/79), and Jackson (487/83). In support of this, the employer cites many cases. Careful analysis of these does not suggest that there is anything wrong with the jurisprudence as it has evolved to date. Neither Goedhuis (482/82). nor Glenny (317/83), nor Rivers (310/82), deal with the exercise of discretion in the same context as the instant case. Gillies (274/81) dealt with a situation in which management exercised some abstract rule and did not properly consider the case at hand and our reading of Stewart (211/78) - a much earlier case - does not lead to the conclusion that the vice-Chairman is rejecting a doctrine of reasonable interpretation and administration. The employer in this case is willing to concede that the discretion must be exercised in good faith. in a non-discriminatory and non-capricious manner. What does making a decision in 'good faith' really mean? At least one definition of 'good faith' is 'honesty of intent' (The Concise Oxford Dictionary,.7th. Edition, 1982.) In the Jackson case (487/83), the Board referred, at page 11. to evidence that the parties "... contemplated that management would exercise its discretion under Article 54.1 in fairness and good faith" although such evidence was not presented to this Board. If ‘good faith' is synonymous with 'honesty of . i’ I , -9- intent', and it was the intent of the parties that discretion should be exercised reasonably, then the test of 'good faith' is whether it was reasonably exercised. We did not have direct evidence of the intent of the parties with respect to the negotiation of this clause. However, our collective experience in the field of labour relations makes it hard to conceive of any other expectation by the parties except that discretion would be exercised in a reasonable fashion. The Employer made much of the fact that Article 54.1 does not specify that discretion must be exercised in a reasonable manner. Therefore, the employer argues, it must be an unfettered discretion. With the greatest of respect, we must disagree. A collective agreement is a rather specialized form of contract under which parties agree to do certain things in return for some consideration., Both the moral and legal foundation of contracts reguire that parties act in good faith and make honest efforts to carry out their intentions. When mature unions and managements enter into collective agreements, we must assume that they do so in anticipation that each will make honest efforts to deliver on their commitments. The basic premise of contractual arrangements, the very foundations of contracts, require good faith. Indeed, we are inclined to the view that the concept of reasonable exercise of discretionary powers > - 10 - . . should be assumed unless the collective agreement explicitly specifies the contrary. This does not mean to say that arbitrators can, wil ,ly-nilly. substitute their judgements for those made by managements. Decisions can be separated into: Process - including fact-finding. analysis, 'generation and evaluation of alternative options, choice of decision criteria, selection, implementation, etc. r Judgement - interpreting data, the weighing of costs and benefits of alternatives, the final selection between alternatives, including how decisions are to be implemented. We take the view that procedural reasonableness is inherent in collective agreements and & reviewable unless there is clear language stating that it is not. Mr. Picher. in Re Lake Ontario Steel Co. Ltd. and United Steelworkers, Locals 6571, 1984, 13 L.A.C. (3d)l93, suggests that this procedural reasonableness may be satisfied provided that the decision-maker does not reject an alternative out of hand or reject it on a basis that is arbitrary, discriminatory, or in bad faith. In Re Hanson and Treasury Board. 1981. 1 L.A.C. (3d). Mr. Pyle suggests that an arbitrator has jurisdiction to determine whether the employer: . . . has in fact exercised its discretion, that the discretion has been exercised by the proper authority, on the particular facts of the case and is not tainted by capriciousness, bad faith or discrimination." . . _ . - 11 - In our view, Lake Ontario Steel and Hanson suggest minimal standards of procedural reasonableness. In exercising its discretion, employers must: a. make reasonable efforts to gather relevant facts as they apply to the particular case in question; b. apply some reasonable decision rule which is not arbitrary or discriminatory; c. make an honest effort to make a decision between possible alternatives; d. act consistently with the decision that was made. Anything less than this does not, in our view, satisfy the obligation to exercise discretion. When it comes to the exercise of judgement, we agree with the prevailing view that arbitrators should defer to managerial judgement in areas where management has discretionary power provided that it is not exercised in bad-faith, capriciously, or discriminatorily. As has often been said. management has the right to be wrong. In this case we do not believe that the employer made a reasonable attempt to investigate the situation and arrive at a reasoned decision. We think that there was an arbitrary rule invoked that "weather conditions are not covered by Article 54" and that, in any case, Mr. Meyer decided not to believe the Grievor's story, without looking seriously at the facts or the situation. In this respect, I )I ! . ’ -. - 12 - (." the employer did not properly exercise its discretion as is contemplated by the collective agreement. It is important to recognise that nothing we have said is to suggest that the employer must.grant such special leave for adverse weather conditions. What we do assert is that the employer must consider such a request and make a reasoned judgement based on the merits of the individual" case. This raises the issue of remedy. Since we have found a procedural defect, the most obvious remedy is to reconsider the request. However, we do not believe that this is realistic in this situation and, therefore, we allow the arievance and order that the Grievor be credited with one statutory holidav credit and one vacation credit. We will remain seized of this matter in the event that any problem emerges from the interpretation or application of this award. Dated at London, Ontario, 1987. this 'irwenty-sixth day of June Mm-g?@ H. Roberts, Member J