Loading...
HomeMy WebLinkAbout1990-2701.Gillies.91-06-05 Decision ONTARIO EMPLOYtS DE LA COURONNE CROWNEMPLOYEES DECONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONEiTELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TEL>=COPIE: (416) 326-1396 2701/90, 2702/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gillies) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R. Kennedy vice-Chairperson G. Majesky Member D. Halpert Member FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE A. Pruchnicki EMPLOYER Grievance Negotiation Officer Ministry of Correctional Services HEARING May 22, 1991 i - 2 AWARD P The Grievor was not scheduled to work an overtime shift on Monday, e November 12, 1990. As a result, he filed two grievances. In the first grievance he alleged that he was unjustly and discriminatorily not rehired to be rescheduled for work on Monday, November 12, 1990. The settlement desired is that he be paid compensation, with interest, as if he had worked the day. In his second grievance he claimed that Maplehurst.is using discriminating hiring practices for overtime, and the settlement requested is compensation for an equal share of the overtime for Unit 4. The Employer raised a preliminary objection with respect to the arbitrability of the grievances on the basis that the Grievance Settlement Board has no jurisdiction to entertain grievances alleging a right to work overtime. Article 13 of the collective agreement between the parties defines overtime and provides for payment or compensating leave for overtime actually authorized and performed but it in no sense creates any right to overtime assignments or to equalization of overtime assignments. It was argued that the collective agreement is totally silent and does not restrict the management right to assign and schedule overtime work. It was argued on behalf of the Employer that these principles were well established - 3 - in prior jurisprudence of this Board, including situations wherein there existed local guidelines or understandings as to the distribution of overtime assignments. It was the position of the Union that there existed a local agreement on the assignment of overtime and that it was unreasonable for the Employer to enter into such an arrangement and then to ignore it. It was agreed by the Union that these arrangements had never, in fact, been formalized into any written document or memorandum, and such arrangements as existed were characterized by the Employer merely as guidelines. In response to the Union argument, the Employer stated firmly that overtime had been assigned equitably at the Institution but that in any event even if it had not, this Board'still lacked jurisdiction with respect to the grievance. It is our view that the position of the Employer must prevail. The issue has been settled in Shangoor 526/82 (Verity), Aubin 1444/85 (Gandz), Cruz 1735/86 (Draper), and Carter 2291/86 (Knopf). These decisions make it abundantly clear that the collective agreement between these parties is completely silent on the question of allocation of overtime, and there is, therefore, no obligation to distribute it in any particular manner. This continues to be the situation even where there exist on a local basis certain guidelines as to how overtime assignments will be - 4 - made. In e a 0301/88 (Samuels), a case to which the Union referred, there did exist a local agreement with respect to overtime that had been reduced to writing. It would appear that that case was argued on the basis that both parties wished the l matter to be decided in accordance with the written agreement, and no objection was I 3 taken by the Employer to the Board proceeding to enforce that local agreement. The situation in that case is, therefore, very different, and the result inapplicable for our purposes on these grievances. Accordingly, it is our holding that the Grievor had no contractual right to the overtime work in question, and not having been authorized to work and not having worked, he has no right to claim payment. We find that the grievances are not arbitrable, and they are, therefore, dismissed. We might comment that it appears to us from the discussions that took place between the parties at the hearing a misunderstanding has arisen between the Grievor and those to whom he reports. It - 5 - is to be hoped that better communication in the future will characterize their relationship. This requires a positive attitude from both sides. DATED this 5th day of June, 1991. Ross L. Kennedy I concur G. Ma I concur / D. Halpert f