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HomeMy WebLinkAbout1988-0648.Cuomo.88-12-19 ONTAR.~O EMPLOYES DE LA COURONNE " ~ CROWN EMPLOYEES DE ~.'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT R GLEMENT 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 -SUtTE 2100 TELEPHONE/T~LL6PHONE 180, IRUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG IZ8 - BUREAU2100 (416) 598-0688 : 648/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES BARGAINING ACT Before THE GR!EVA~CE SETTLEMENT BOARD Between: OPSEU (S Cuomo) ~ Griever - and - 'the Crown in Ri2ght of Ontario rMinistry of Correctional Services) i Employer Before: P. Knopf i Vice-Chairperson J. Solberg I Member D. Montrose i Member For the Griever: M. Bevan ] Grievance OffiCer Ontario PublicI Service Emmloyees Union For the Employer: M. Galway t Staff Relations Officer Human Resource~ Management Ministry of CoPrectiona] Services HEARING: November 22, 1988 DEC tS ION Th~s case involves a question of interpretation of Article 19.4 of thy collective agrem3nt. Article 13.4 prov ides; Any comoensatin~ leace accumulated under sections 19.2 and 19.3 may 3e taken off at a time mutually agreed upon. Faiiin~ a§reement, such, time oft may be taken in conjunction with the employee's vacation leave or regular daf(s) off if requested one (1) month in advance. ?he pa~ties agree that if 30 days' notice is .Diven by the crop!oeec of a desire to take a ~ay off in conjunction with his regula_~ days off, his request must be hoaoured. However, ~he issue in this case is whether the employee is entitled to more than one day off if the requisite notice is given. The carries are simply seekin9 a declaration to gl'ce them .assistance in the interpretation of the collective agreement. However, the agreed facts which gave rise to this question are as follows. The grievor had accumulated a number o~ days o~ "compensating leave" ~o his credit. He gave 30 days' notice that he wished to have five. da~s off in a row. Specifically, his regular days off were July 5, 6, 12 and 13. His request concerned July 7, B, 9, 10 and 11. The grievor was told that he could have one day off but mot the other four because they were not "in conjunction" with his regular days off. Specifically, he was told he could have 3uly 7 nsf because it was in conjunction with July 5 and 6 and that he could perhaps be given July 11 as well because it was "in conjunction with" July 12 an] 13. But the grievor was told he would not be alloweJ July ~, 9, and 10 off Dec.~use they were ,ct in conjunction with o f , The Un,on argues than Article 19. i sets out only two oaram~ters for the utilizau:on of compensating leave. it is acknowledged that the time must h~ze ~e~n accumulated. Sscondly, it is acknowledged that at least 39 days' notice re.sst be given. ~heceaftes, the Union aP~u~s that any amount no l~mi~ on the amount of tim~2. I~ is s~ossed that i~ only eno day was ailow~d to De %aKe:% in Cor%jdF~ctlon w~ Lh Ministry operate on a i2-nour compressed wo~ week. they earn only eight hours in the "bank" of lieu nime for any statutorf holigay. Thus, if the Employer were correct to say that only one day may be taken in conjunction with regular days off, if aa employee exercises his rights under A~ticle 19.g he would only be allowed %o use eight ho.gus on the day he wanted to De off. ?herefore, the Union argue~ that as long as the time was accumulated and pro,er notice given, and that the time is to be taken in one ~rouo of lime in conjunction with r~Gular days off, then nothing i~ the collective a~reement prohibits what this gri~vo~ was seeking. In response to ~he Union's argument, uhe Employer offered two main 9roun~Js of ~efence. First, it was arDued that if the purpose of Article 19 and the collective agreement as a whole is £ecognize,], then we should accept that the number of days an employee has unilateral sche~Juiin~ rights over she.eld be limi t~d ~o the circumstances which ghe lieu ,Ja~s were earneJ. Specifically, if %~le lieu d~y3 w~.~ ea~neJ for a s~n.~]a iso!a~ed hot,lay, EheR day rlDhts sl~ou]d only ne in res?,)ct of a single isolat~J (l~f. We were asked to re~J Artirle 19 as .:~ whole an.] to it in coajuncCion with Article 43 which spe}.[s out the statutory holidays. We were reminded that .holiday pay is de$igne~ to compensat~ for the loss el the opportunity to celebrate on the designated Jay and to compensate [o'r th~ loss o~ a break in the regular working routine. We were referred to the cases of M_.a_s_~_y-Harris-Fer[lu~so_n- (1955), L.A.C. 2123 <MacRae), McGreqor et al. a_nd_ MJD_!~st_Lry of Community__&_ Sociai Services, GSB File 857/87 (Witsom) and Bell and Ministr_ii of Communi__~y and Social Services, GSB File 1t.3,/7~ (Sw zn ~on ). nth-shift workers. It was pointed out that of[ice wet,ecs almost invariably will De given the statutory holiday o~f wilt be requir~ to take them when they fall. Only Christmas an~ Boxtag Day or Good Friday amd Easmer Mon~ay cier~cal workers get any extende~ breaks. Otherwise, the s~a~o~y holidays simply ~ive ~h~m on~ ~ay w~[hin tnt mid~ie of 5he week or a lon9 weekenJ. However, it was submitte~ that if the Union's argument were to prevail, shift workers could conceivably accumulate 11 lieu days am~ ga~a the benefi~ of an extended vacation that wo~ld not De available ~o o[fice workers. It was ~rgued ~bat ~his would sub,esl ~nequity gham ought not to be considered to have Peen the in~ent~on o~ the parties. We were referred to Sears an~ Minisnr~ of Communi%~and Social Services, GSB File 1129/~6 (M, G. Picher), to suQQest that unless there' is a reason for a fis[inction between two groups of employees, the contract shou!~ not be r~ad to imply such a ~istinc%ion. The Employer's other arO~nent in Jefence of the ~jrievance was that Article 19.4 ou!4ht to 1o.~ ~'e~'J to contain an implied requirement of reasona;)lencss ~,n the ex~clse of the employee's rights. It w3s sa].] t.,~t .-~ {~ilu?~ to exorcise the rights affotdo'i t:o thc ,'*;:}:~[;,:'.'~.3 :.lnd,':' ArLic/e L9.4 wiZhi~ a re-~sona',).[e period of cJm,~, ougi~c zo amount to a Z~SS off ~hose [ighzs. th was argued chat Article 19 as a whole provided for how and when holiday payment sJ%ould be accumulated dy taken. Article 19.4 merely provided for the circumstances upon which an employee may unilaterally have the right ~o take time off if ~e mee~s the conditions of Article 19.4. It was said :hat unless those conditions were met and unless the request was made for that time within a r~asonable period of time, then the compensatin~ leave which may have been accumulated woul~ then simply 9e paid out under Article 19.5. The Employer argues taat ghe ~.)asis of the assertion that ~he~e ~s an ~mp~e~ d~ty of reasonaDieness in Article 19.4 comes from Zhe declaratory order issued in the Tremblav ~ecision, SSB ?ile 185/31 '~',.'er~ty). ~ha5 order concluded: In the event that the employee fails to exercise his discretion in selecting lieu day or days, and the scheduling thereof, within a reasonable time after the failure to reach a mutual agreement unde~ Article 19.4, ~he provisions of Article 19.5 shall De deemed to apply. It was suggested that a "reasonable period of time" in which the rights under Article 19.4 can be exefcised should be accepted as 30 days as a result of the TremDlay decision. The Decision The Employer has asked us to read Article 19.4 as containing an implied duty of reasonableness as well as a limitation on the amount of days which may be taken off. It is readily acknowledged t!%at there is no specific language {n Article 19.4 which would suggest such a reading but wa are urged to look at the collective agreement as a whole and the purpose of the Article to reach such a conclusion. We agree with the Ministry ~hat the Article must not De read in 'iso!atioa and must be read as part o[ the collective agreement as a whole. We also a.~ree that a board of arbitration should ~ive a purposive interpretation to provisions of a collective agreement. However, with the 9rea~test of respect for Ms. Galway's thoughtful, analytical and skillful argument, we do not agree that the collective agreement contains the restrictions which were suggested. There are several reasons for our conclusion. First, the langua§e in Article 19.4 does put some restrictions on wh.=n compensa%in.~ leave .may be taken. As acknowledged D'f the Union, unless the par%i-~s a~ree, compensating leave may not De ~a~.e.q off u,nless it has 'o.~en accumulated, is in conjunction with the emploaxee'$ vacation leave o.~ re~.~!ar days o~, and is requesnad one month in advance, these are the only three restrictions which have been placed upon when an employee may utilize compensatin~ leave. The parties could have easily specified the maximum amount of leave which may be taken at one given period. However, they chose nor. t.o do so. On the contrary, the !anguage of Article 19.4 speaks of "any compensatin9 leave ac.c_umulate~ .... " [~mphasis added]. There would De little or no purpose to the words "any" or "accumulated" if leave could not be accdmulated. Further, the wordin~ of the Article 'makes it clear that "any compensa~in,~ leave accumulated ... may be taken off ...". This clearly implies that any amount of leave may be taken of~. The parties could have specifie~ that one .Jay be taken off at a time or one ~ay be utilized at a time but again, they declined to do so. Thus, we can see nothin~ in the Article that restricts the amount ~hat should be taken off when it nas accumulated in %he "Dank" of compensatin~ leave. We also do not accept that the collective a~reement requires that the rights under Article 19.4 must De utilized within 30 days oc within any other period except as specifi~{d in Article 19.5. A~-%icle 19.5 provi.Jes: Any compensating lea'ce accumulated under sections 19.2 and 13.3 in a calendar year which is not use,i before March 31 of the foiiowin~ year shall De paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by a~reement Of the local or at the local or Ministry level. !n Article 19.5 the parties have specifically turne'~ their minds [o how long compensating leave may accumulate and what si]ould i~appen at .qarcn 31 of each calendar year. Spesi~!ca![~], ti~e oarLies have agreei zhat the amounz %h1% has asc'~mulabed should be paii out snless it was ~til[zel. Having made this specific agreement, we $.~e n,..~ basis for zhe suggestion that the parties have impliedly agrsed that Article 19.4 must be utii~zed in a less or restricted time. The Tremblay declaration which the Employer relies ~pon does say that if an employee fails to exercise his discretion zo select a lieu day "within a reasonable time after the failure to reach a mutual a~reemcnt under Article 19.4, tho provisions of Article 19.5 shall be deeme~ to apply." However, since the ~re_m_.b_.l_a_~ decision, the ~arties negotiated the one-month advance notice provision in Article 19.4. The TremDlay declaration was clearly an attempt by that Boar~ to r~uire that reasonable notice be given the Employer. The parties have since defined that reasonable period be as one month. But we do not read %he declaratory order in the ?remb!a~_ decision-as creating a further restriction on Article 19.4 that says chat unless the rights under Article 19.4 are utilized within one month then they are lost. Such a readin_o would De a significant curtailment of the rights contained ~n the Article and, absent express language in that regart, such a readin~ is not appropriate. %';a ara s,ympat, hettc ~o th.e .~i.qlSt. r'/'S argumen~ that success o~ the Un~on's ads{ t~on ~n this :iasc wou]:'] resu]t in shi~t employees ~heoreticallj being able [J prolonged periods of absence tl]a[ clerical employees would never be able to replicate. We agree that a collective agre~ement should De interp~e~e~ as much as possible ~o insure equity to all the workers cover~ by its terms. However, there are ~wo answers to this argument. First, w~ere parties have specifically diffe~ent~ate~ b~tween the rig~.~s of shi~t an~ non-shift workers, those ~i~hts m~st ~e nonoured. Clearly, special Drovisions in Article 1~ which grant ex~ra compensation an~ rights to compensation to employees w~o are r~quire~ to wo~'K o~ StaLed'D2i' This is most certainly deslgnef to compensat-z for employees' loss et opportunity to a=~ winh thelt~ families .~n:~! celebrate statutory holidays such as 'C~irists~as, ~'i~.5%a Remembrance Day on the designated ~ays. Second, the granted under Article 19.4 to uaLlaterally scheJule lieu days off, even in a group, may be small comfort to a shift-work employee and his/her family as compensation for ~he loss =he ability to celebrate the designated holi:i~ys together. ?~%us, =ilcr.3 may nj% De such a lar.}e inequality between the two groups of employees as is suggested by the Ministry. However, in any event, we conclude that the .language of Article 19.4 must be given its clear meaning. The only restrictions on ~he scheduling of compensating leave wher~ mutual agreement is not possible is that the t~me must be taken in conjunction with ~he employee's vacation or renu!ar days off, and the time r~dst be r'e~uested one month in aSvance. Where the employee desires and the osher raquirements of Article 19.4 are m~t, mor~ than one ~ay at a time may be demanded. We t~uet that this declaration wJ. ll be of assistance to the parties. We remain seized with the matter should any further assistance be required. DATED at Toronto, Ontario this 19thlay of December, 19B~. '~liSn~r S~e, Member