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HomeMy WebLinkAbout1989-0768.Wilson.90-02-08 ',<,~-; '..," .i ,,';~':, .:" ' ' ON TA RIO EMPL OY':cS DE LA COURONNE ~' ',~.., ~ t. " CROWNEMPLOY&ES DEL'ONTARIO '"" ': GRIEVANCE C.OMMISSION DE / / SETTLEMENT REGLEMENT-. BOARD DES GRIEFS 180 OUh'DAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TEL=-'='wONE/TELE'~ONE 180, RU£ ,.~UNDAS OUE.$T, TORONTO, (ONTARIO) MSG 1Z8-BUREAU2100 (41E :-~-0688 768/89, -79/89, 780/89 IN THE MATTER OF AI~ ARBITRATIO5 Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV;%NCE SETTLEMENT BOARD Between: OPSEU (Wilson) Griever - and- The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.W. Samuels Vice-Chairperson G. Majesky !~ember M. O'Toole ?~ember Pot the Grievor: G. Richards Senior Grievance officer Ontario Public Service Employees Union For the Employer: M. Galway Staff Relations officer Ministry of Correctional Services Hearing: December 14, 1989 ~c~s~oN 2 The grievor filed three frivolous grievances. They are all dismissed. The grievor is a correctional officer. She has worked for the ' ' Ministry since 1985, most recently at the Metro West Detention Centre and then since February 13, 1989, at the Barrie Jail. On April 1, 1989, she filed a grievance alleging unfairness and discrimination because management had removed her from the work schedule for the statutory holiday on March 24, 1989. She had been ~ :~ scheduled on the master rotation to work the day shift on that day, but ~,:,' management did not need all of the employees on the list for the°day shift, so seven employees were given adequate notice that they would not work on the statutory holiday. The grievor was one of these seven. Later, one of the seven was assigned to work the afternoon shift on March 24. The grievor enquired of the scheduling officer whether there was some system to determine who would work on the statutory holiday, and finding that there was no adequate answer, she feels that the system is unfair. She feels that her seniority should have found her a place on the roster for March 24. The grievor received holiday pay. for March 24. Had she worked, - . ..... she would have received double time plus eight hours off in lieu. · But the collective agreement gives no special priority to senior employees for work on statutory holidayS~ Arid the grievor and Union acknowledge that this Board has often and unequivocally said that the only right an employee has with respect to a statutory holiday is the right to the holiday pay. There is no right to work on the holiday, and management can schedule whom it wishes, provided the scheduling notice provisions are complied withmsee, for example, Ferguson, 78/82; Birse, 338/83; and Bothara and Gillies, 316/88. Section 18(I) of the Crown Employees Collec'.ive Bargaining Act sets out a management rights clause which is ... deemed to be included in any collective agreement. Pursuant to this 3 provision, the employer has the exclusive right to determine "complement. organization, assignment". The ,nevor s claim is entirely without foundation and the point she raises has been clearly decided by this Board in the past. On April 10, 1989, she filed a grievance asking for compensation for her efforts in collecting money owed to her as a result of an earlier settlement of a grievance. The settlement was made on Janu.ary 20, 1989. and obligated the Ministry to pay her $350. · .... The Ministry took three months to pay (the payment was received by -' the grievor on April 21). The grievor thought it would take about a month. We accept that normally one ought to be paid promptly. Apparently the Ministry payroll department was in the process of a move from Toronto to North Bay at the time and this caused additional delay. in early March, the grievor received permission from her supervisors to use the phone at the Barrie Jail to call Toronto to find out where her $350 was. On March 13, she made her first call, and then · - within the week, she made four or five more phonecalls to people in the Ministry in Toronto. On March 20, she spoke with Mary Capobianco, who is in the Metro Region Personnel Office (Capobianco had signed the "? original settlement). The grievor testified that Capobianco said "If you ~- want payment, come to Toronto to get it". We aren't sure the entire context of this remark, but it appears to have been made out of sheer frustration by Capobianco. Obviously it makes no sense to drive to Toronto to collect $350. But that is what the grievor did on March 21. She went to the Metro West Detention Centre and they had nothing for her. She returned to Barrie. On April 4, she went to the Metro West Detention Centre again. Same result. She*also ma'de some telephone calls on her personal line. 4 Now, she claims mileage for two trips to Toronto (286 km per trip), eight hours pay for the time the trips took, and around $5.00 for the phone charges on her personal line--a total of $200 to $250! All of this to collect $35O. Given that the interest she might have lost on $350 amounts to about $3.50 per month, her claim of over $200 to 'reimburse her for her efforts to speed the payment is absolutely preposterous. A few phonecalls and a letter or two _would have been reasonable. There was never any suggestion that she wouldn't be paid. This was not a case requiring heroic efforts to effect collection. In these circumstances, her grievance has no merit whatsoever. · ; The Ministry had several preliminary objections with respect to this grievance--firstly, that the Board had no jurisdiction to hear a grievance concerning a memorandum of settlement; secondly, that the grievance was not processed through the grievance procedure; and, thirdly, that the referral to the Grievance Settlement Board was out of time. We have decided that it is best that we comment on the merits of the grievance. And having come to the conclusion which we have, it is unnecessai-y for us to decide upon the preliminary objections raised by the Mirdstry. ...... ~ On June 7, 1989, the grievor claimed that she had been denied · payment of expenses incurred while attending a mandatory training session. This is the most ridiculous grievance of the lot. On April 25 and 26, there was a training session at an Inn seven kilometres from the Barrie Jail. The employees were told that they would not-get any allowance for lunch. There is nothing in the collective agreement which requires a meal allowance in these circumstances. Article 17.2.4 does provide for the possibility that management may authorize the meal allowance. It wasn't done here. 5 The grievor spent $5.35 one day, and $3.85 the next on her lunches. Normally at the Jail, she spends $2 to buy a meal voucher. So the two lunches at the Inn cost her an additional $5 and pennies. Apparently the grievor is upset b~cause, while she was at the Metro West Detention Centre, she did get a meal allowance for some training sessions. Well this previous experience gives her no right to a meal allowance on this occasion. Perhaps she had a right to the meal allowance in the previous circumstances because of the distance travelled to the training sessions. Or, the department head on these earlier occasions just decided to authorize a meal allowance. The grievor knew there was nothing in the collective agreement giving her the right to these allowances. And the extra cost for her was trifling. This grievance is absolutely frivolous. We are very concerned about the fact that these three grievances came to this Board. The Board is a service provided at public expense. It is important that the public purse not be abused. By pursuing these three entirely meritless grievances to arbitration, the grievor has imposed a cost on the --. public purse of thousands of dollars (for travel by witnesses and advisors, for fees to the members of the Board, for other incidental expenses). And this Board is overtaxed. Scheduling her grievances to arbitration meant that some other grievance would have to wait. Some other member or members of the bargaining unit, perhaps with a pressing and legitimate claim, would have to wait for a later opportunity to come before the Board. The grievance and arbitration procedure under the collective agreement is not a licence to file frivolous grievances. The Preamble to .: -., 6 the collective agreement says that one of its purposes is to "establish and maintain a pr0~cedure for the prompt and equitable handling of grievances and disputes". It is simply not possible to meet the demand of "prompt and equitable handling" if the Board's time is Wasted on grievances like the three which came before us. Article 27.1 of the agreement, dealing with the grievance procedure, says that "It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties". Surely this must mean a very hasty resolution of grievances which have no merit whatsoever. " 'i'-': ~i:' While we appreciate the Union's feeling that it is obligated to its members. -.' to bring any grievance before the Board if the member so wishes, in our view, Article 27.1 also imposes an obligation on the Union to "adjust irs: quickly as possible" grievances which are obviously without any merit. It was frivolous of the grievor to file these three grievances. It was vexatious and unconscionable of her to pursue these grievances to arbitration. Done at London. Ontario, this 8th day of February , 1990. els, Vice-Chairperson /~~. Ma~~j ' (Addendum attached) esky, Member M. 0 Toole, Member .- L Between: OPSEU (WILSON)- 768/8Q and The Crown in Right of Ontario (Ministry of. Correctional Services) Union Nominee Addendum After reviewing the award of the Board, I feel as thc'dgh I must comment on certain aspects of the award and make some additional opinion that I hope provides a fuller perspective concerning the griever, the grievances filed, and the political environment at the Ministry concerned. Specifically, the griever filed three grievances, cne dealing with rotating shift where the griever was taken-off scheduled duty roster, another concerning a meal allowance when in attendance at a conference, and the third where the grie.~or sought to obtain monies that wer.e-forthcoming under a memorandum of settlement between the Ministry and the griever. Regardless, I will not belabour the merits of the three grievances, but, I do think there are several particularly illuminating realities which mitigate in the particular circumstance~ to a great degree. This board would be wholly irresponsible if we do not look at the political environment that this ~rievor works in. They are inextricable ie., the griever, the Ministry, and the political problems which have plagued this Ministry over the last three ..~ years. All of this coming to a head in the fall of this year l with the lock-ins and the political unrest that the correctional officers had demonstrated, thus forcing the government to take appropriate action with respect to under-staffing an~ working conditions. How this mitigates in t~-.e grievor's immediate instance is not specifically clear, but there is no question, from my perspective, that the en'~-ironment politically has been .roisoned. And as a result, the kinds of grievances we have before us are an extension and manifestation of the labour relations climate in the Ministry. It doesn't take long for one to r. ake the comparison or parallel ketween the Ministry of Corrections and Canada Post. And I think we have a responsibility as a Board to delve a little deeper into the political stew that ferments this kind of employee discontent and grievances. In terms of whether or not the grievor had a right to file these grievances, some questio~ has been raised about the checks and balances where grievances should be vetted at stages ~rior to coming to hearing, enabling only the "cream of the crop' to come before the Grievance Settlement Board. I don't believe there is anyone who would argue there isn't a vetting procedure in place ie., OPSEU has competent service representatives, shop stewards, and a fairly active and sophisticated member education program to give members the tools tc identify and advocate on the kehalf of ~he members. These are Dart of the checks and balances that are politically in place which facilitate the maintenance of the members rights. Whether or not the Bcard agrees with merits of this case, .the fact is the grievor is a shop steward, is fairly political and militant, and as a result has. taken her task to heart that she must challenge the employer on these grievances because she feels some wrong doing or inappropriate administrative action has been ~.-~ ~ leveled. Further, although OPSEU's Constitution provides members the right. to 'challenge grievances to the arbitration stage, I believe there is a responsibility which is .exercised on the part of OPSEU staff and the members to solve at stages previous to the hearing, outstanding grievances. One only has to look at the number of settlements and cancellations of hearing scheduled to proceed. The Board may feel that union members have absolute carriage and that somehow there is no fetter on the members pursuing grievances to arbitration. I would say that is inaccurate .in · ~ that there is responsibility on the part of staff representatives and grievance officers to act as grievance settlement officers and put matters to bed, if possible. In addition, there is a great degree of human judgement which is exercised properly and professionally on the part of the membership and OPSEU staff. And we can't be toc hasty in our suggestion that because we disagree with the merits of certain grievances, that somehow the whole system is predicated on the rationale that all issues come "'-~ to arbit"~tion This proposition is abso!utelv false and inaccurate in reality. Further, there are statutory p_~visions that give the members the right to challenge grievances at arbitration. So not only do the grievors enjoy the priv' leges of their union constitution to come forward with their corolaints, but they also have legislative guarantee's. Sc it'_= not as though the fly.in the ointment is the OPSEU constitution if the Board disagree's with merits of this immediate case c_-.ming to hearino. But it's the entire bundle of rights, both l~~~sletive and union, that give members the confidence and assurance that they do have a mechanism in place. It is the members version of the Charter of Rights in their workplace. And it is bee!thy and g~neral!y works well. Upon reviewing the reward, it appears the language is '~ather strong and I find the remarks intemperate, even within the context that the award is a one-off award. I feel we l~ve to be careful regardless of any predisposition to hearing cases based on various merit, whether frivolous or otherwise, that we leave grievors with a sense of justice and fair-play. GrJ~vors who avail themselves of the process Should be encouraged to do so, because to do otherwise is a counter-productive exercise'which in the future may have the potential of inhibiting other ~rievances coming forward which should be adjudicated. What may ~Ltimate!y inhibit the pursuing of future grievances may very well be the distaste left in the grievors mouth after reviewing the award in this matter and the kind of language that it was writt~l in. The reason why we must exercise a little more restraint is that this grievor ma~' fulfill the duties of shop steward for many years and be responsible for her own grievances, but more importantly, may be the reFresent~tive of other correctional workers who may be totally de.renden[ on the 9rievor to represent them in matters of grave concern ie., violations of the collective agreement, rights or otherwise. Sc it is particularly significant that the broader implications of how the grievor leaves this process an~ her general disposition be considered becasue, the grievor may well have ~-to utilize the process to represent other members of OPSEU. That is a '~-ery irportant and critical role that union leadership must perfcrm in OPSEU, and the Labour Movement in general. As well, I believe it is common knowledge there are problems in the Corrections Ministry, and the award does nothing productive in this regard, and might further aggrevate "the tempest in the teapot" . For these reasons, I believe this board has to be more cognizant of the protlems :_n the Corrections Ministry. Respectfully subr. itted by,