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HomeMy WebLinkAbout1990-3005.Anderson.91-10-01 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1z8 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 IN TEE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Anderson) Grievor BEFORE : and The Crown in Right of Ontario (Ministry of Correctional Services) M. Watters E. Seymour G. Milley Emp 1 oyer Vice-Chairperson Member Member FOR THE P. Cavalluzzo GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE C. Foster EMPLOYER Grievance Administration and Negotiation Officer Ministry of Correctional Services HEARINg June 11, 1991 This proceeding arises from the grievance of Ms. Joan D. Anderson, the material part of which reads: "STATEMENT OF GRIEVANCE I grieve that I have been improperly required to work evening hours. SETTLEMENT DESIRED I request that my work day end at 4:45 p.m. and that I be paid an additional 48 cents per hour for any time that I have been required to work after 5:00 p.m. before this matter is dealt with. The grievor was the sole witness called by the Union. The Employer elected not to call evidence in support of its position. The facts relevant to the resolution of this dispute may be stated as follows: (i) The grievor works as a secretary in the Ministry's Probation and Parole Office located at 4125 Lawrence Avenue East in Scarborough, Ontario. She has worked in that capacity since 1977. At the time of her hire, the grievor was the sole secretary in the office. The secretarial complement had increased to four (4) as of the date of the grievance. The grievor is a Schedule 3.7 employee. (ii) When the grievor first commenced employment at the above-mentioned office, she worked from 8:30 a.m. to 4:45 p.m. Monday through Friday. This work pattern was referred to as "day-time hours." In or about 1984, the Employer introduced "night hours". The employee assigned to those hours would work from 11:00 a.m. to 7:30 p.m. on Monday through Wednesday and from 1 " 8:30 a.m. to 4:45 p.m. on Thursday and Friday. The grievor testified that the night hours were always assigned to a designated secretarial position within the office. She stated further that such position was posted on that basis pursuant to a union-management agreement. The person occupying the designated position would normally shift to day-time hours when another secretarial opening occurred. A new hire would then assume responsibility for the night hours. (iii) The grievor advised that she had never worked night hours other than as an occasional replacement for another secretary absent due to illness or other cause. She estimated that she had done this approximately six (6) times since 1984. It was her evidence that she would not have taken the job in 1977 if it had then included the requirement to work night hours. In contrast to the grievor’s experience, all of the other secretaries in the office as of the date of grievance had commenced their employment in the designated position. (iv) In the summer of 1990, three (3) of the secretaries including the grievor worked regular day-time hours. Indeed, the grievor had worked such hours consistently since 1977. The fourth secretary worked the night hours. In August, 1990, the secretaries were informed by Mr. R. Williams, the Area Manager, that he intended to have all of them rotate through the night hours effective January 1, 1991. Initially, he wanted each of the secretaries to take one (1) night per week. Ultimately, as a result of a suggestion from the group, each secretary took one 2 (1) week a month of night hours. Another suggestion to phase new hires into these hours was not adopted by the Employer. We were advised that there were other Probation and Parole Offices in which not all of the secretaries shared night work. The notice given to the grievor with respect to the change stated that the hours would run from 10:45 a.m. to 7:00 p.m. It was the position of the Union that the Employer’s right to schedule hours of work was fettered, inter alia, by an obligation to administer the collective agreement in a reasonable manner. Counsel submitted that, on the unique facts of this case, the Employer had acted unreasonably. A number of facts were relied on in this regard. Firstly, it was noted that the grievor had never worked night hours. Secondly, unlike the other secretaries, she had not initially been hired into the designated position. In fact, the grievor asserted that she would not have accepted the job on those terms. Thirdly, it was noted that not all secretaries share night hours in other Probation and Parole Offices. Fourthly, the Employer had not considered other suggestions flowing from the secretaries which would have gradually phased in new staff vis a vis the night hours. Lastly, counsel for the Union emphasized that no explanation had been given for the change. We were, therefore, asked to conclude the Employer had failed to establish that it acted reasonably in all of the circumstances. The remedy claimed was limited to an order that the grievor be returned to the regular day hours. The issue 3 of entitlement to shift premium had been previously resolved by the parties. The Union relied on the following authorities in support of its position: Baylis. 1762/89 (Samuels); The Canadian Union Of Public Employees, Metropolitan Toronto Civic Employees’ Union, Local 43 v. The Municipality of Metropolitan Toronto (1990, 74 O.R. (2d) 241(Ont.C.A.). In response, it was the position of the Employer that the Union had failed to show a breach of the collective agreement. From its perspective, articles 7,8 and 10 had been fully complied with. It was, therefore, submitted that the Employer had acted reasonably in this instance. We were consequently urged to dismiss the grievance. The Board was referred to the following awards: Barnfield, 67/76 (Swan); Bateman, 2/77 (Prichard); Kerr, 362/80 (Jolliffe); Baker/Elliott, 90/89 (Kirkwood); Blake et al., 1276/87 et al. (Shime); Cripps 660/86 (Verity); OPSEU (Cripps) and The Crown In Right Of Ontario (MCS) and the GSB, unreported Divisional Court decision of Mr. Justice Southey released November 29, 1988. The relevant provisions from the collective agreement and the Crown Employees Collective Bargaining Act, R.S.O. 1980, Chapter 108, as amended, read: ARTICLE 7 - HOURS OF WORK 7.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one- 4 quarter (36 1/4) hours per week and seven and one-quarter (7 1/41 hours per day. ARTICLE 8 DAYS OFF 8.1 There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non- consecutive if agreed upon between the employee and the ministry. ARTICLE 10 SHIFT SCHEDULES 10.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (1 1/2) for the first eight (8) hours worked on the changed Shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control. 10.2 Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however, that if an employee is required to work before twelve (12) hours have elapsed he shall be paid time and one-half (1 1/2) for those hours that fall within the twelve (12) hour period. It is understood that the term "shift" does not include any period of time in respect of which an employee is entitled to overtime payments or compensating leave in accordance with Article 13 (Overtime) or Article 14 (Call-Back). 10.3 A shift may be changed without any premium or penalty if agreed upon between the employee and the ministry. 5 10.4 It is the intent of the parties that there shall be no split shifts provided however, that in circumstances where split shifts are currently in existence reasonable efforts shall be made to eliminate the split shifts. 10.5 The current practice of giving notice of shift schedules in advance under existing agreements where notice is in excess of fifteen (15) days shall be maintained. 18. (1) 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,' employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and 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. 19. (1) 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, application, 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.' 6 It is clear to the Board that section 18(1) of the Crown Employees Collective Barglaining Act provides the Employer with the right to assign and schedule an employee's hours of work. That right has been fettered by articles 7,8 and 10 of the collective agreement. After reviewing the facts of this case, we are satisfied that none of the aforementioned articles have been breached in this case. The central issue before us is whether the right to assign and schedule work is further fettered by an implied duty on the Employer to administer the collective agreement in a reasonable manner. In our judgment, that question must be answered in the affirmative after the decision of the Court Of Appeal in Metropolitan Toronto Civic Employees' Union, cited above. After considering the case of Greenberg v. Meffert (1985), 50 O.R.(2d)755(0nt.C.A.), which held that a discretionary clause in an employment contract had to be reasonably exercised, Mr. Justice Tarnopolsky concluded: "Like the analogy with respect to standing, it is difficult to apply this case in the context of collective bargaining. Nonetheless, it is true that a collective agreement is an intricate contract, which attempts to reflect the outcome of bargaining on a myriad of issues. It is also true that parties intent on reaching a settlement do not always have the time, the incentive, or the resources to consider the full implications of each and every phrase. There is, therefore, a place for some creativity, some recourse to arbitral principles, and some overall notion of reasonableness. See, for example, David M. Beatty, "The Role of the Arbitrator: A Liberal Version" (1984), 34 U.T.L.J. 136. The presence of an implied principle or term of reasonable contract administration was also acknowledged by Craig J. in Wardair, supra, at pp. 476-77 O.R." (page 259) 7 This Board cannot isolate any sound reason for refusing to extend this logic to the present collective agreement governing the relationship between these parties. Indeed, an analogous approach was taken in Baylis. The Board there determined that "even in the absence of any specific language in the agreement, it is implicit in the collective agreement that management will administer the collective agreement in good faith" (page 3). While the Employer's good faith was not challenged in these proceedings, we think that the same inference should be made in respect of the notion of reasonableness. The Board has been persuaded that the Union has demonstrated a prima facie case of unreasonableness on the part of the Employer. We find that the facts relied on by the Union support this conclusion. In this case, as noted above, the Employer elected against the calling of evidence. We were, as a consequence, not given any reason for the change in the long standing practice which has adversely affected this grievor. In the absence of an explanation as to why there was a change in the status quo, we are prepared to hold that the Employer acted unreasonably. The Board orders, therefore, that the grievor be returned to the day-time hours as worked prior to January, 1991. This decision should not be read as limit ng the general right of the Employer to change an employee's chedule. Our conclusion flows from the unique set of facts placed before us in this case. As stated above, the Board agrees that the Employer has the right to assign' and schedule hours of work. Our ultimate conclusion here is that such right was not reasonably applied. The grievance is therefore allowed. Dated at Windsor, Ontario this 1st day of .October, 1991. 9 OPSEU (Anderson) 3005/91 Dissent I have reviewed the award in the above case and I regret I am unable to agree with my colleagues. Primarily, the majority relies on two decisions to support its conclusion: Baylis 1762/89 (Samuels) and The Canadian Union of Public Employees, Metro. Toronto Civic Employees Union vs. The Municipality of Metro. Toronto (1990) However, the Baylis case deals with a matter which is different from the instant grievance. Baylis deals only with the matter of whether the Board, following an allegation of bad faith, has jurisdiction to hear the case. In the present case, there 1s no allegation of bad faith or question of jurisdiction and for these reasons the two cases are not comparable. It does not go to the merits. Notwithstanding the reliance on Baylis, the award(page 7) departs from the matter of bad faith and states: "The central issue before us is whether the right to assign and schedule work is further fettered by an implied duty on the employer to administer the collective agreement in a reasonable manner." (emphasis added) The difficulty I have with substituting 'reasonable manner" for bad faith" is that the former is a very subjective term. Admittedly, there is an elemnt of subjectivity in both. -2- However, in collective agreement parlance there is a general understanding of the term "bad faith!' In Baylis(p3) it is ref- erred to as "fraudulent misrepresentation." What is the test for reasonableness absent a violation of the collective agree- ment? Is it unreasonable because it is immoral? If so, it becomes a purely subjective matter. The award states that "the union has demonstrated a prima facie case of unreasonableness on the part of the employer. We find that the facts relied on by the union support this conclusion. What does the term unreasonableness mean in this context? It cannot mean "bad faith" as referred to in Baylis because, on page 8, the award says the "employer’s good faith was not challenged in these proceedings." Thus, in administering the collective agreement, there must be two implied criteria that the employer must meet in addition to the language of the collective agreement: 1. A test of good faith, and 2. A test of reasonableness It occurs to me that caution ought to be observed in the amount of creativity displayed in interpreting and defining the parameters of a collective agreement which the parties have negotiated and signed. The facts relied upon by my colleagues, with respect, would not appear to support a prima facie case of unreasonableness. First, it was said that, unlike the other secretaries, the grievor had not initially been hired into the designated position and she had never worked night hours. In fact, -3- the evidence was that there was no designated position when the grievor was hired. She was the sole secretary in the office. The fact that she was assigned a day shift when hired in 1977 was no guarantee she would continue on days throughout her working career. There was no evidence she was given such a commitment and there is no provision in the collective agreement that would support such a conclusion. Second, it was said that not all secretaries share night hours in other probation and parole offices. The inference here is that the grievor ought to be assigned the self same hours as secret- aries in some other probation and parole office. However, not a scintilla of evidence was presented to the Board to justify such a claim. It is well accepted, that for various reasons, work requirements and work assignments differ from one office to another depending upon the exigencies of the operation. The union's assertion that they should all be the same is without merit and ought to be rejected out of hand. Third, it was said that the employer had not considered other suggestions flowing from the secretaries which would have gradually phased in new staff vis-a-vis the night hours. The evidence was that the employer did consider various suggestions of the secre- taries and did change its plans as a result of their suggestions. The fact that management did not adopt the suggestion to phase in new hires vis-a-vis the night hours is not to say it was not considered nor was there any evidence to this effect. Finally, the award notes that the employer elected against the calling of evidence. The Board was, as a consequence, not given any reason for the change in hours which affected the grievor. On page 8 it says: "In the absence of an explanation as to why there was a change in the status quo, we are prepared to hold that the employer acted unreasonably." -4- With respect, this position would not appear to be justified. I agree that an explanation of the reason for the change would have been helpful. But can it be said that the absence of an explanation, in itself, is sufficient reason to portray the employer's action as unreasonable? I hardly think so. Also, apart from the reason for the change in assigned hours, this grievance was one dealing with management's rights and it would be reasonable for the emp- loyer to conclude it would properly be decided by arbitral jurisprudence and the argument of counsel rather than by test- imony of witnesses. With respect to the decision of the Court of Appeal in Metro Toronto, there is a clear distinction between it and the present case. Apart from the question of arbitrability, the matter dealt with by the Appeal Court was whether the employer was required to act reasonably in promulgating rules with disciplinary consequences. The Board of Arbitration in Metro Toronto held that where there is an article of the collective agreement that provides that disc- ipline must be for reasonable cause, rules that are promul- gated pursuant to management's rights clauses and which can have disciplinary consequences if disobeyed, must meet a standard of reasonableness. The Board based this interpretation on two arguments: (1) that, in general the collective agreement must be read as a whole so that one provision is not read in a way that negates another; and (2) that specifically, the agreement in question provided that management rights clauses would not be read in a manner inconsistent with the other prov- isions of the agreement. In finding that the employer was required to act reasonably in promulgating rules with discip- -5- linary consequences, the Court of Appeal stated (at page 259): "Moreover, in imposing a duty on the employer to exercise its discretion to make rules with disc- iplinary consequences in a reasonable fashion, the Board gave the collective agreement an interpret- ation that it reasonably and logically could bear.' (emphasis added) Thus, it apparent that the decision of the Court of Appeal is restricted to requiring that an employer act reasonably in promulgating rules with disciplinary consequences where the agreement provides that discipline must be for reasonable cause. The reason for this is obvious. Where the agreement provides that discipline must be for reasonable cause, then logically, it follows that rules promulgated by the employer which could lead to discipline must also be reasonable. To hold otherwise would allow the employer to undermine the reasonable cause provision of the disciplinary Article and would also create an inconsistency with that provision. In the instant case, there is no question of discipline involved and there is no evidence that the employer's action was, in any way, inconsistent with any provision of the agreement. Indeed, the award on page 7, states: "None of the afore- mentioned Articles have been breached in this case.'" In 660/86 Cripps (Verity), the Board said: "The novel issue said to arise in this case is the standard or scope of review of a management right conferred by statute. Restricting the area of search geographically in a competition is the type of management activity which the Ontario Divisional Court appears to agree is within the exclusive function of the Employer as provided in s. 18(1) of the Crown Employees Collective Bargainin Act. S. 18 of the Act makes it clear that those matters within the exclusive function of the Employer shall not be the subject of Collective -6- Bargaining and in particular, 'nor come within the jurisdiction of a board.' Accordingly, it would be unr- easonable and indeed improper, we think, for a Board to hinder or in any way interfere with management rights in those areas of exclusive jurisdiction. For the above reasons, this grievance must be dismissed. This decision was appealed to the Supreme Court of Ontario Div- isional Court and the appeal was dismissed. In its decision the Court said: "AS to whether management rights must be exercised reasonably, we say only that, if there is such a limit- ation on management's rights, it cannot be implied by anything contained in article 4 of the Collective Agreement. The instant award takes a contrary view and says, on page 8, that it is implicit in the Collective Agreement that management will administer the collective Agreement reasonably. In GSB 1335/86 Dupuis (Knopf) the Board said: "Further, we wish to emphasize the concept that there is an extremely heavy onus on a party seeking to con- vince a panel of this Board to depart from its earlier jurisprudence. This was strongly articulated by the Chairman of this Board in the-decision of Blake et al. Nothing in the facts before us indicate any 'exceptional circumstances which would induce us to deviate from an earlier decision of this board. "The onus will be on the party seeking review to establish exceptional circumstances." (Blake et al). In the instant case, the majority award fails to follow the jurisprudence of Cripps and, in my view, fails to show any except- ional circumstances why it should depart from such jurisprudence. For the above reasons, I would have dismissed the grievance. Respectfully submitted,