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HomeMy WebLinkAbout1986-1240.Gordon.88-10-05ONTAR, EMpLOYfSCE ‘4 CO”R0NN.E CROWNEMPLOYEES ‘DE L’ONTARIO GRIEVANCE C$M/lhiISSION DE ;~FJ-&MENT REGLEMENT DES GRIEFS 124qfa6, 1241/86, 2506186 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Robert Gordon) and The Crown in Right of Ontarici (Ministry of Correctional Services) D.H. Kates Vice Chairperson J. Solberg Member D. Montrose Member For the Grievor: N. Wilson Counsel Gowling & Henderson Barristers and Solicitors For the Employer: J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services Hearing: February 19, 1985 Employer -l- Decision The Board notes for the record that Grievance No. 781/86 and Grievance No. 1239/86 were abandoned and withdrawn. The Board also notes for the record that Grievance No. 1241/86 is identical to Grievance No. 1240/86. The only difference‘ is that Grievance No. 1241/86 clarifies in a more detailed manner the nature of the relief requested should Grievance No. 1240/86 prove successful. As a result there are two grievances before this Board. The one grievance (No. 1240/86) alleges that the employer improperly and contrary to Article 4 of the collective agreement denied the grievor the position of Corrections Officer II at the Whitby Jail (competition No. 202!5/86). The other grievance (No. 2606/86) relates to the grievor's allegation ,that while a Corrections Officer II at the Toronto East Detentiorr Centre he was by-passed with respect to the assignment of overtime in contravention of the employer's policy for the equal distribution of overtime. For reasons that were not fully explained to this Board the parties agreed to the consolidation of these grievances in.order that they be heard together. The employer challenged 'the "arbitrability" of both grievances on the separate grounds that will be described as this decision evolveu. The Board was asked to deal with the employer's arbitrability challenge before dealing with the merits of the grievances -2- The background circumstances relevant to the jurisdictional challenges to arbitrability should be briefly described. The grievor 'at all material times was employed as a Corrections Officer II at the Toronto East Detention Centre. In 1982 he was involved~in a work related incident that eventually prompted his request 'in 1986 that he be transferred laterally to a like position as Corrections Officer II at the Whitby Jail. The intervening period Gas consumed with grievance proceedings and other related appeals that need not be recounted herein. It suffices to say, ~that both the grievor's supervisors and the grievor were of the identical opinion that the grievor should no longer remain a Corrections Office~r at the Toronto East Detention Centre. To this end, the grievor alleges that the Assistant Deputy Minister, Mr. M.J. Duggan violated a verbal commitment made to himto facilitate his transfer to the Whitby Jail. And, moreover, because this alleged commitment never materialized the grievor responded in the.ordinary course to the posting .o.f a job competition (dated Mar& 26/89) advertising the vacancies of two Correction Officer II positions~at the Whitby Jail. It is common ground that the grievor met from time to time with Mr.. George Simpson, Superintendent, .Toronto East Detention Centre to discuss his continued desire to be transferred to the Whitby Jail. Whatever efforts were expended by Mr. Simpson on the grievor's behalf to effect the transfer those efforts proved unsuccessful. The grievor was interviewed and considered in the ordinary -3- course for the Whitby job vacancies. His application for the position wa* not successful. There was conflict in the evidence as to when the grievor was advised of his failure to be awarded the position. We are satisfied, however, that the grievor most likely was advi sed of the adverse result of his application during the course of a telephone conversation with Mr. L. Migneult, Depu~ty Superintendent, Whitby Jail on May 30, 1988. It is clear from the documentary evidence that was adduced that the grievor was given formal notification of his rejection by letter dated May 26, 1986 and received by the grievor on June 11, 198C. After learning -of this failure the grievor contacted Mr% Simpson to express his disappointment. The grievor stated that he told Mr. Simpson that he intended to grieve the results of the job competition. Mr. Simpson indicated that "he would look into it" and advise of the results of investigation in due course. At that time both Mr. Cordon and his trade union representative, Mr. George Clarke, were conscious of the 1 mandatory time limit for the presentation of a timely grievance with respect .to the adverse result in the job.competition. To this end Mr. Simpson and Mr. Clarke entered into the following agreement, Memo to: Mr. C. Simpson, From: George Clarke Superintendent, T.E.D.C. President, L..582 Date: June 20, 1986 Subject: Waiver of time limits for grievances of officers R. Moreau, S. Lonsdale, B. Gordon -4- Mr . Simpson: With respect ~to the (3) above noted officers, I have consulted with Bob Gordon, CO2 and he is willing to waive the time limits (and believes he is of the authority to speak on behalf of C/O's Moreau and Lonsdale) for job competition grievances until they hear from you by July 7/8G. Respectfully For the Union C. Clarke R. Gordon For the Ministry George Simpson Both the trade union and the employer agree that the above document represented a waiver of the mandatory time limit for the presentation of a grievances relating to the job competition result herein discussed. They have different opinions, however, about the scope or duration of the time limit that was in fact waived. It suffices to say for present purposes that the waiver 'was intended to expire "by July 7, 1986". And by that date Mr. Cordon received no word from Mr. Simpson with respect to the employer's.efforts to effect the grievor's desired transfer to the Whitby Ja~il.. The grievor attempted to contact Mr. Simpson on July 7 to determine the outcome 'of his efforts. Mr. Simpson could not he contacted that day. However during the period between July 10 and July 29, .198G, the grievor had several meetings with Mr. Simpson at which time his Frustration in not securing the lateral transfer was expressed. At that time Mr. Simpson is alleged to have told ~the grievor "to hold off" processing a grievance'with respect to the. job competition but to proceed with the grievance relating to Mr. Duggan's alleged failed committment to effect the transfer. He advised the grievor "to wait and see" what happened with -5- respect to his job competition complaint. During his cross-examinalion Mr. Simpson could not recall.any of the foregoing conversation he is alleged to have had with the grievor. When nothing positive emerged following the discussions, the grievor submitted a grievance (1240/86) dated July 31, 198G challenging the employer's decision denying him the Corrections Officer II position at the Whitby Jail. It is relevant to'note that the grievor's claim for relief should the grievance be deemed "timely" and should he be successful on the merits of his complaint is For compensation for his travelling co&s between his residence in Oshawa, Ontario, and the premises of the Toronto East Detention Centre for the period he allegedly ought to have been assigned to the Whitby Jail. The grievor has since May 4, 1987, been transferred to the Whitby Jail and claims no other compensatory relief (because the Whitby position attracts the same rate of pay) as a result of the employer's alleged breach. The employer has maintained that the job competition grievance was "oust of time" and in violation of the mandatory time limits provided for in the collective agreement for "the processing" or a grievance. The relevant provisions reads as follows: 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: 27.3.1 TII~ employee may fi1e.a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. 27.13 27.14 27.15 27.16 -G- Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. In this Article, days shall include all days exclusive of Saturdays, Sundays and designated holidays. The time limits contained in this Article may be extended by agreement of the parties in writing. The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. emphasis added It is common ground that a grievance to comply with the mandatory time limitmust be presented within seventeen days of any discussions between the parties that fails to satisfactorily settle the complaint that gave rise to the grievance dispute. In accordance with Article 27.2.2 an aggrieved party has seven days from the parties' failed discussion of the complaint to , process "within an additional ten days" the complaint as a grievance. In determining, in the circumstances of this case,. when the seventeen day time limit should start to run (excluding Saturdays, Sundays and designated Holidays) we,agree with the representations made by the trade union. We are satisfi,ed that the waiver agreementcontains no express restriction limiting the waiver of the time limit (as argued by the employer) to the seven day period Following the parties' failed settlement discussions. Rather, in our opinion, the waiver agreement was clearly intended to extend the time for calculating the seventeen days to July 7, 1986. ~-7- However, in our agreeing with the trade union's representations in the above regard, we do not at all agree as a result thereof that the grievance complies with the mandatory requirements of Article 27.2.2 of the collective agreement. As heretofore indicated the grievor's competition grievanae was presented to the employer on July 31, 1986. The trade union during its representations during argument left us with the impressionthat the grievance thereby complied with the seventeen day time limit. That is to say, it was indicated that the trade union had until August 4, 1986, to present the grievance.. Our computation of the seventeen days (always excluding Saturdays, Sundays and designated Holidays) would indicate, however, that the grievance had to be presented to the employer on July 30, 1986, to comply with the ,mandatory time , limit. In other swords, we are of the opinion, having regard to the strict application of Article 27.2.2, that the trade union was one day late and,therefore the grievor's grievance was untimely. Alternatively, the trade union argued that the grievor's conversations with.Mr. Simpson sometime after July 10, 1986,. where Mr. Simpson allegedly persuaded Mr. Gordon "to hold off" filing the competition grievance constituted an "open-ended" extension of the written waiver document that had'hitherto expired on July 7, 1986. We do not agree with that argument even assuming that the conversation in question could be construed as "a waiver" or an extension of the original waiver agreement. Firstly, the -8- alleged extension of the waiver agreement failed to comply with Article 27.15 of the collective agreement in two respects. It was not an agreement reduced to writing (as was the case with the initial waiver document) and, moreover, it was not an agreement that was made with the trade union. Accordingly, since the alleged waiver was made between the employer and Mr. Gordon (a non-party) it was not an extension that is appropriate for purposes of .Article 27.15 of the collective agreement. Secondly, we are of the opinion that in order for an alleged verbal waiver to be made enforceable against the employer it must have been made between the two parties to the collective agreement. In other words, in order to invoke the equitable jurisdiction of an arbitration board for purposes of enforcing the waiver agreement the party seeking relief must have been privy to the alleged verbal representations that were made by the other party that resulted in the alleged unfairness and/or inequity. In the instant case the trade union cannot .be seen to enforce an alleged agreement.(whether written or oral) to which it was not eve*r.a party. Accordingly, we would reject the argument that the trade union, even if Mr. Simpson did agree with Mr. Cordon to extend the original waiver document/could enforce at arbitration that agreement against the employer. In support of this proposition we rely on the decision in The Metropolitan Toronto Civic Employees Union, Local 43. Canadian Union of Public Employees and Municipality of Metropolitan Toronto et al. (1985) 50 O.R. (2d) Cl8 (Div. Court) where it was held that the doctrine of "promissory estoppel" did not lie - 9 - against the employer for representations made to bargaining unit employee8 (as opposed to their trade union) that wae detrimental to their interests. In that case' the court ruled aa follow8 at page 628: The situation before the arbitrators in this case is different from the foregoing case8 in a way I think significant. Here the representations are not shown to have induced the union to act to its detriment. There is no suggestion that, because of representations made to these employees. the negotiators for the union were led to assume that benefits would be paid to those employees on a one for one basis. notwithstanding this agreement. and there is no evidence of a course of conduct on Metro's part that led the union to believe that. So far a8 I am aware. the'doctrine of promissory estoppel has been applied only on the basis of the conduct of oue party to a contract to another party. Employees represented by a union are bound by but are not themselves parties to a collective agreement. If representations to employees leads a union to forgo an opportunity to attempt to negotiate the 8UbEtanC8 of the negotiations into the agreement the doctrine could apply. But that is not this case. There is no evidence of that. I therefore agree with the board that the doctrine does not' apply in this case. I do not agree with the chairman's view that the application of the doctrine of estoppel is at odds with the statutory requirement that a colleotive agreement be in writing. I accept Osler J. 's analysis to the effect that to consider whether the doctrine applies or to apply it, in a proper case, is to consider or decide a 4iaput.e relating to "the application of the agreement", something well within the jurisdiction of moat arbitrators. It is certainly withill the jurisdiction of this board which is constituted to decide differences arising between the parties "relating to the interpretation, application or administration" of the agreement: art. 21.01(a) of the collective agreement. Since this is sufficient to dispose qf the matter I do not think it necessary to consider other pointa raised in argument. emphasis added According ‘13-t for all of the foregoing reasons the grievor's competition grievance is untimely and therefore ie not arbitrable. 1 - 10 - The grievor's second grievance relate8 to the employer’8 improper decision to by-pass him with respect to "the assignment" of overtime allegedly in contravention of the employer's policy for the equal distribution of overtime. That policy was committed to a memorandum darted November 21,.1986, which reads in part as followtl: Management is very concerned about distributing the available overtime fairly, however, if you don't list yourself as being available you may be missing the opportunity of being hired. The grievor alleges that up until "the incident" that occurred in 1982 he had regularly made himself available for the assignment of overtime at the Toronto East Detention Centre and that he had regularly received overtime assignmenta. After he returned to the Toronto East Detention Centre in i986 he regularly~advised hi8 superiors of his availability for overtime in accordance witk the prevailing practice. However, he wae consistently by-passed with respect to opportunities for overtime that were otherwise assigned to hi8 fellow Correction Officers. The grievor was clearly of the view that he was being by-passed because of hi8 involvement in the 1982 incident and for no other legitimate reason. He alleges, accordingly, that the employer has abused its management discretion with respect to the distribution of overtime by virtue of its failure to adhere to its own policy directive. It is common ground that the collective agreement contains no provision governing the distribution and assignment of overtime. The sole reference made to "overtime" is under - 11 - Article 13 and Article 13 relates to the "premium" paid for overtime worked and other related matters. The employer insists that Mr. Cordon'8 Overtime grieVanCe,iE not "arbitrable" becauee the distribution of "overtime" represents "an assignment" within the meaning of Section 18(l) of The Crown Employees Collective Bargaining Act R.S.O. 1980 C 108 as amended. As sudh the employer's policies and it8 manner of implementation of those policies with respect to overtime is beyond the jurisdiction of this Board to review. Accordingly, this statutory restriction places the grievor's complaint beyond the j~urisdictiorral authority of this Board and is therefore not arbitrable. Article 18(l) reads as follows: 18.-(l) Every collective 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, ' (a) employment, appointment, complement, organization, aaaignment, discipline, dismissal, suspension, work method8 and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development,, apRraiaa1 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. Alternatively the employer argued that, absent a.provision in the collective agreement dealing with the distribution of overtime, this Board was without jurisdiction to review an unfettered management prerogative with respect to the overtime assignmenLs that are made. 1n this regard the Board was refered . - 12 - to several G.S.B. precedents upholding the employer's submissions (see: Re OPSEU (Bulchan Changoor) and The Crown ,in Right of Ontario (Ministry of Transportation and Communications) decision dated January 5, 1983 (Verity); Re OPSBU (L. Crinns) and The Crown in Right of Ontario (Ministry of dorrectional Services) decision dated November 2, 1987 (Verity); Re OPSBU (C. Aubin) and The Crown in Right of Ontario IMinistry of Correctional Services) decision dated August 5, 1987 (Gands); & The Crown in Right of Ontario (Ministry of Solicitor General) OPSBU (Pehlke) decision dated February 25, 1988, (Roberts)). In dealing with the arbitrability of the grievor'8 overtime grievance we are of the view that for the purposes of this case we need not find in any definitive way that an overtime assignment is an "assignment" to which Section 18(l) of CECBA is applicable. The employer could not provide any clear GSB precedent that that is a conclusion that ha8 been teached~in any. other decision. We would prefer to defer to a more appropriate time the consideration of the employer's argument with respect to the scope and meaning'of Section 18(l). However, in considering the relevant arbitral jurisprudence provided us we are of the view that the grievor's overtime grievance is not arbitrable by virtue of the conclusions reached in those precedents. It suffices for our purposes to refer to The Aubin decision which reads at p. 4 as follows: The Collective Agreement is completely silent on the question of the allocation of overtime and to suggest that there is any implied commitment to distribute it fairly and equitably would he to substantially amend the agreement and thisis clearly beyond the jurisdiction of this Board. In this, we follow the Board's established jurisprudence a8 reflected in Changoor. - 13 - A relatively formalised procedure haa developed at the Cornwall Jail for allocating overtime equitably and this is to be applauded. The fact that people on LTIP are treated differently to others with respect to thin issue seems eomewbat silly since there would be no.prejudioe to anyone caused by treating them the same. It ray be that, indeed, this practice contravenes the Human Rights Code. But~the job of thisBoard is.not to rule on violations of the Fluman Bights Code. The Code has its own enforoement mechanisms and these.ahould be used to resolve complaints arising under it. k'e should only use this statute in the task of interpreting a collective agreement. Since we have found mo ambiguity in the interpretation of the collective agreement, the Human kights Code simply does not come into play. Accordingly; the grievance is denied. And for like reasons we hold that the overtime grievance in this case is not arbitrable irrespective of the alleged existence of a procedure for the equitable distribution of oveltime. k'e.would accordingly dismiss the grievor's overtime grievance. Accordilhgly, ~there is nothing left for this Board to resolve. Dated this 5k.; D..Montrbse, Member