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HomeMy WebLinkAbout1989-0800.Tilden.90-02-06 ONTARIO EMPLO¥£S DE I._A COURONNE CROWN EMPL 0 YEES DE L 'ON TA RIO · ' GRIEVANCE COMMISSION DE SETTLEMENT R~:GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO. MSG 1Z8- SU.~TE 2100 TELEPHONE/T£L~-PHONE '180. RUE DUNOA$ OUEST, TORONTO, {ONTARIO) MSG lZ8 - BUREAU 2100 (416J 598-06~8 8oo/8~ IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: '~PSEU (Tilden) Grievor - and ~ The Crown in Right of Ontario (Ministry of Housing) Employer Before: C.G. Simmons Vice-Chairperson D. Wintermute Member M. Wood Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: S. McDermott Counsel Hicks Morley Hamilton 't. Stewart Storie Barristers & Solicitors Hearing: December 12, 1989 DECISIO~ Mr. Ken W. Tilden, the grievor, holds the position of "landscape architect" which falls in the classification class title of Community Planner 4 which further falls within Schedule 6 meaning that the incumbent works a minimum of 36-1/4 hours per week. He is employed by the Ministry of Housing. In June, 1984, there was a reorganization carried out in the Ministry of Housing which resulted in a decentralization involving six regional offiCes across the province. The grievor was assigned po the head office at 77 Bay Street in Toronto. His duties included providing architectural services to four regional offices and this required considerable travelling. Article 23.1 in the Collective Agreement provides "employees shall be credited with all time spent in travelling outside of working hours when authorized by the Minis~r~,~". The Employer raised a preliminary objection to this Board's jurisdiction t° hear. the grievance on its merits claiming that the grievor was out of time and therefore the grievance is inarbitrable. It was agreed by the parties that the Board would consider the preliminary objection before proceeding to the merits. However, a certain amount of evidence.was led in order to establish the sequence of events that. transpired. On August 19, 1987, the grievor sent a memorandum to his supervisor, Mr. W.A. Gibson, Manager, Architectural Services, outlining a total of 118 hours of overtime credits for the period from February 28, 1987, to July 29, 1987 (Exhibit 6). On 2 ~August 25, 1987, the grievor submitted another memorandum to Mr. Gibson claiming credits of 143.5 hours for travel time in 1986 (Exhibit 7). On December 2, 1987, the grievor resubmitted his memos of August ~19 and 25 together with a memorandum wherein he quoted Article 13.7.1 of the Collective Agreement which reads:' "Employees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive e~'ivalent time off." He sought reconsideration of the requests that he had advanced inAugust (Exhibit 8). On September 1, 1988, the grievor submitted a memorandum to Mr. P.G. Stonehouse, Director, Technical Support Branch, wherein he sought to have his 1996 claim reviewed for which he had not received a positive response (Exhibit 9). A memorandum dated September 6, 1998, to Mr. Tilden from Mr. Gibson outlined the Employer's response, which reads (Exhibit t0); Re: Overtime/Travel Time Prior to leaving on his vacation, Mr. P.G. Stonehouse instructed me to reply in writing to your memo of 1 September 1988 to him claiming additional premium payments for overtime and travel time prior to 1987. Mr. Stonehouse's position is: 1. In December of 1987 you prepared a request form for premium payments based on your '~' own records which was verified and recommended by me as your immediate supervisor. 2. Mr. Stonehouse approved your form on the understanding that this was your entire claim and on condition that subsequent future claims would be on a monthly basis and with authorizations attached. 3. Therefore he is no__t prepared to accept additional prior claims which lacked either his authorization or aDproval. The grievor, on December 19, 1988, in a memorandum to Mr. Gibson submitted his travel claims for the last quarter of 1988 but again submitted for reconsideration his travel time for the 1986 calendar year wh'ich was previously denied (Exhibit 11) . On January 25, 1989, Mr. Stonehouse replied that his 1986 travel time claim would not be accepted (Exhibit 12). Next, the qrievor filed his grievance dated May 25, 1989 claiming travel time pay prior to January 1, 1987, retroactive to January 1, 1985 (Exhibit i~2). On June 8, 1989, Mr. Gibson replied to the grievance in the following terms (Exhibit 13) Re: Grievance dated May 25, 198% This is in response to your grievance in which you state that your claim for travel time and overtime retroactive to January 1, 1985 has not been paid in accordance with the collective agreement. After having, reviewed your concerns with Human Resources, I am unable to approve either payment, or time off in lieu retroactive to the date you requested. I am'advised your grievance is.outside of the time limits outlined in the collective agreement and is therefore not grievable. There was some evidence that the grievor was possibly not fully aware of his entitlement until he had a conversation in May, 1989, with a co-worker in Ottawa, Mr. Mac MacDonald, wherein he was informed that certain Schedule 6 employees at the Ottawa Branch 4 had received travel time credits retroactively to January 1, 1986. Also in this conversation, he was advised that there was a decision of the Grievance Settlement Board, Fawcett 275/82, which held that Schedule 6 employees were entitled to travel time. Mr. Tilden then filed his qrievance and souqht a copy of the Fawcett decision from OPSEU at the Queen's Park office. He subsequently learned that the office did not have a copy of the Fawcett decision but eventually obtained a copy which he received sometime in June. Therefore, according to the union, the grievance is not out of time because Mr. Tilden only became aware of his entitlement in May of 1989. We were informed that the grievor has been a steward sometime between 1984 and 1987 and, according to counsel for the Employer, ! he ought to have known his rights. Moreover, he was informed by the September 6, 1988, letter reproduced above that he was not · going to receive his 1986 claim, but by this time had been gr~nted his 1987 claim. Therefore, he ought to have grieved at that time. The union countered that even if he ought to have grieve~ the Employer raised no objection to the processing of this grievance based on timeliness until the .hearing in these proceedings.~ Therefore, the Employer cannot now raise such an objection and based its position on another decision of this Board involvin Mary E. McNamara 272/81. We are unable to accept-the position of the union that the employer failed to raise an objection at an early stage In the grievance process. Rather, an objection was raised at the first stage reply to the grievance dated June 8, 1989 (Exhibit 13) 5 reproduced above. The last paragraph is worth repeating which states: I am advised your grievance is outside of the time limits outlined in the collective agreement and is therefore not grievable. In our view, that is a clear statement to the sffect that the Employer has taken the position that the grievance is out of time and is not grievable, and accordingly not arbitrable. We do not believe that it is incumbent upon the~ Employer to restate this objection throughout the grievance procedure. What is required is that the grievor and the union be put on notice at an early stage in the grievance proceedings that the Employer will be taking the' position that the grievance is not grievable. In our view the letter of September 6, 1988, is a clear statement that the Employer was denying-the claim for any time prior to January 1, 1987. There can be no dispute that the grievor should have filed his grievance following this. response by the Employer. This is all the more so when it is learned tha~ the grievor had been- a steward in the years between 1984 and 1987. To wait for over three months from the date of that reply to December 18, 1988, and then seek reconsideration of the decision by the Employer is Simply not enough when it is acknowledged by the union that Article 27.2.1 relating to time limits is mandatory. That Article reads: An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with a supervisor within twenty (20) days of first becoming aware of the complaint or difference. The Article then goes on to provide the procedure which is t~ be followed in the event the complaint or difference is not satisfactorily settled. It is our opinion, therefore, that upon receiving the reply of the Employer on September 8, 1988, the grievor had been made fully aware that the Employer was not going to honour his claim for 1986 and earlier. It was at this point that the 20 day clock began ~q.run' In our view, having failed to file his grievance within that 20 day period results in having this board conclude that the grievance is indeed out of time and is inarbitrable. The"grievance is dismissed. DATED at Kingston this 6th day of FeSruary , t990. C. Gordon Simmons Vice Chairperson D. Wintermute Member M. Wood Member