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HomeMy WebLinkAbout1991-0594.Grant.91-10-08 ONTA RIO EMPLO Y~-S DE LA COURONNE · CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 27~0, TORONTO, ONTARIO. MSG 1Z8 . TELEPHONE/TELEPHONE: (4 ~6) 326- '~80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO rONTARIO.I. M5G tZ8 FACS]MILE/T£L~COP~E : (416) 326-~'396 594/91 IN THE MATTER OF ~N ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARG/%INING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Grant) Hrievor - a~4 - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: G. Simmons Vice-Chairperson S. Urbain Member D. Montrose Member FOR THE M. McFadden HRIEVOR .Counsel Koskie & Minsky Barristers & Solicitors FOR THE C. Foster EMPLOYER Grievance Negotiation Officer Ministry of Correctional Services HE~RINH September 12, 1991 2 The grievor is a correctional officer, classified as a Correctional Officer 2 at the Miilbroo. k Correctional Centre. He has been employed as a correctional officer since 1978. In January, 1991, the grieVor filed a grievance under Article 18.1 of the collective agreement claiming that managembnt had not maintained the common practice of training days for I.C.LT. (Institutional Crisis Intervention Team) which endangered his health and safety (Exhibit t). The grievor worked the night shift on February 18 and 19. His regular days off were February 20, 21, and 22. He returned to work on the day shift on February 23, 1991. By letter February 13, 1991', the grievor received a letter from the Area Personnel Administrator setting out, in part, the following comments (Exhibit 2): This is ta advise you that Mr. R. Hawkins, Regional Manager (E), has been designated to meet with you in accordance with Article 27.3~3 of the collective agreement to discuss your grievance ... Please report to the Superintendent's office, Millbrook Correctional Centre, on Friday, February 22, 1991 at 0945 hours so that we may proceed with this Stage Two meeting ... The grievor attended the above Stage Two meeting on February 22 for approximately four hours. He claims that he is entitled to call-back pay pursuant to Article 14.1 in the collective agreement. Article 14.1 reads: 3 ARTICLE 14 ? CALL BACK An employee who leaves his place of work and is subsequently called back to work prior to the sta~ng time of his ne~ scheduled shift shall be paid a minimum of four (4) hours' pay at one and one-half (11/..2) times his basic hourIy rate, The Union contends that what transpired in the instant situation fails squarely within Article 14.1. The gdevor last worked on' his regularly scheduled shift on February 19. He was next scheduled to work on February 23. He was called back to attend a meeting on February 22 which was prior to his next scheduled shift. The Union claims .that A~c[e 14.1 applies because what transpired falls within the' phrase "subsequently called back to Work". In the Union's viewpoint, the word "'work'" needs to be broadly defined. It includes a whole host of circumstances which goes beyond what one typically thinks of as "work"" and an employee's defined duties. The Board was referred to a number of cases which show that arbitratois have acknowledged that '"work'" can include a highly varied number of circumstances, in Koncz, GSB File No. 0748/88 an unreported decision of a Board chaired by Mr. R.L. Vedty, QC, dated March 20, 1989, the gdevor was on sick leave as a result of aieg injury from Monday, Juty 4 fo Friday, July 8. He was scheduled to return to work on Monday, July 11. On Thursday, July 7, a Ministry investigator held a series of interviews in connection with an investigation under Section 24 of the Occupational Health and Safely Act regarding staff speeding 4, on the premises. On that day the grievor attended at the work place to pick up his pay cheque and to deliver a medical certificate fo a supervisor which indicated that the grievor would be able to return to work the following Monday. The supervisor requested the grievor to attend an interview with the investigator. The gfievor stated that I~e formed the opinion that he had no choice but to offend as requested. The grievor sought payment PUrsuant to Article 14.1 o~d was successful. At pages 6 and 7, the Board commented as follows: On the evidence adduced, the Board is satisfied that the grievor's interview with Investigator Packer can be properly characterized as 'work' within the meaning of the call-back provision. The rationale of call-back is 'work'.- Admittedly, the gdevor's regular work was maintenance 'painting. However, the evidence establisl~ed that other employees were interviewed by the Ministry Investigator on July 7 during normal working hours. The Board finds as a fact that attendance at the interview was sufficiently work related to constitute work. In sum, the type of work. done does not affect the payment. In Clark, GSB File No. 950/89, 1029/89 an unreported decision chaired by M.R. Gorsky dated August 8, 1990, Mr. Clark, a Correctional Officer 2 at the Burtch Correctional Centre, had given cardiopulmanary resuscitation to an iht.hate on April 6, 1989. The inmate later died. The grievor was not scheduled to work on April 7, 1989, but was telephoned at his home by a supervisor at about noon and was ordered to report to the Centre for an interview. The grievor's home was located approximately 32 kilometres from the correctional centre. He received 5 payment for four hours pay at 1 ~/2 times his basic hourly rate pursuant to Article 14 but he also claimed entitlement to mileage rates under Article 22 of the collective agreement and to time credits while ITaveJling under Article 23 of the collective agreement. His grievance failed but in obiter comments, the Board stated on page 8 as follows: However one looks at the matter, the Grievor was called back to work. The fact that the 'work' in this case would involve an interview with Ministry afficials, made it no less work. All of the purposes of Arlicte 14.1 were fulfilled. The payment to the Grievor was to pravide him with a .guarantee. of adequate compensation for the significant disruption and expense incurred by him as a result of the call back. The Board also was referred fo Re Ajax and Plckerlng General Hospital and Nurses' Assoc. of the Ajax and Picketing General Hospital (1975) L.A.C. (2d) 440 (Weatherill); Re Steinberg Inc. and United Food and Commercial Workers Union, Local 486 (,1985) 20 L.A.C. (3d) 289 (Foisy): and Re Allied Chemical Canada, Ltd. and United Automobile Workers, Local 89 (1975) 8 L,A,C, (2d) 26 (O"Shea). Finally, we were referred to Re International Molders and Allied Workers Union, Local 49 and Webster Manufacturing (London) Ltd. (1971) 23 L.A.C. (37) 0Neiler) in which three employees worked their regular shift during which the Employer indicated to them that if expected to receive a new bake oven. The truck arrival was postponed and the grievors were asked if they would return to work following their shift to unload the truck. The three grievors returned but the truck did not arrive until approximately two and one-half hours after their return. In the International 6 Molders case, there are two purposes that the decision sets out with respect to call-back situations. One is to compensate employees for the cost of having to undertake an extra trip to the work ptace; and two, so that there will be some fettering on the Employer so as to attempt to have its employees attend at work during the regular shift and not during off work hours. Accordingly, it was the Union's position that Article 14.1 squarely falls within the fact situation that occurred. The Employer argued that Article 14.1 has no application to what occurred. The grievor was not called back to perform any work whatsoever. Instead. he attended a Stage Two grievance meeting which is simply not work. All of the Union cases that were referred to the Board go to call-back situations. While the Employer does not argue over the correctness o.f the decisions that the Union has submitted, if does argue o~er the requirements that are contained in those decisions. The Employe~ referred the. Board to several cases as wett. In Baker/Elliott, GSB File No. 90/89 an unreported decision chaired by B.A. Kirkwood and dated October 31/1990, sets out three requirements in order for call-back pay fo be invoked. Af page 8 that Board said: Therefore, in order to receive entitlement fo the pay the employee must (]) leave his place of work, (2) be subsequently called back to work, and (3) he must be called back to work prior to the starting time of his next scheduled shift. 7 If is flue that the gdevor left his place of work and returned prior to the start of his next scheduled shift. In Koncz, the Board ~vas satisfied that when fha Employer asked the grievor to meet with the inspector the Employer triggered the situation which the Board found was sufficiently related fo work an-d, therefore, activated Article 14.1, In Clark, the Ministry was carrying out an investigation and once again was activated by the Employer. Instead of Article 14.1 being the pertinent article, the Employer takes the position that if is Article 27 that is relevant. We were referred to Articles 27.3.3, 27.6.1, and 27.6.2: 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the. .grievance and shall give the grlevor his decision in writing within seven (7) days of the meeting. 27.6.1. An employee who is a grlevor' or complaina.nt and who makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence with no loss. of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. 27.6.2 An employee who has a grievance and is required to affend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no Joss of credits to attend such meetings. 8 According to the Employer, a meeting was held in accordance with Article 27.3.3. It was the Employer's position that Article 27 is a complete code on how grievances are to be processed as well as how compensation is to be paid for attendance at such meetings. It was the Employer's position that the Board must stay within the four corners of Article 27 and one cannot go outside of theft article to find additional compensation. Article 27.6.2 alIows for the attenda~.ce al: a Stage Two meeting (which was what occurred On February 22, 1991) whereby on employee is given time off without loss of pay or credits. There is no evidence that the grievor lost any pay or any credits and so, therefore, there is no violation of Article 27.6.2. In support of the Employer's position, the Board was referred to Berlinghoff and. Eaton, GSB File No. 1878/87 an unreported decision of Ms. Barr6:tt, Vice Chairperson, dated July 20, 1988. In that case, two grievors Were headquartered in a small town in Northern Ontario. Both grie~ors had filed grievances concerning meal allowances and were advised that the Step. Two grievance meeting would be held at Timmins approximately forty to forty-five miles from their headquarters. The grievors sought fravet and meat expenses fo attend the grievance meeting, but they were denied. The Union in that case relied on Article 2 which deals with mileage rates and Article 17 which is concerned with meal allowances. The Barrett Board had the following to say on pages ;z and 8: We have no doubt that it is part of the employer's business to process grievances. It is also part of an employees [sic] business fo file grievances and to attend 9 fo the grievance procedure on his own behalf. Effective grievance handling is in the best interests of both the employer and employee. An appropriate grlevance -procedure is the main underpinning of any collective agreement because it ~s to the'mutual benefit of the parties to facilitate the proper handling of g. rievances. · Traditionally both have shared, at least I'o some extent, the cost of handling grievances so that neither is inclined to abuse the process. Generally speaking grievance meetings are held during regular business hours because that is when all of the participants are readily available. The management team is paid to attend these meetings because that is part of their regular duties. Similarly, grlevors are not docked pay to attend these meetings in regular working hours because the lass of pay could well be prohibitive to some employees with legitimate 'grievances. It is the presumed legitimacy of the grievance procedure which brings into being clauses such as Article 27.6.2 to prevent salary loss to the participants in a grievance meeting. However we do not find that Article 27.6.2 is an all encompassing clause requiring that the employee is to bear no expense whatsoever to participate in the grievance procedure. We find that Article 27 was intended by the parties to cover the entire procedure for the handling of grievances and the financing of same and we should not look outside that clause to Articles 17 and 22 to find additional recompense for employees engaged in the grievance procedure. Article 27.6.2 is quite clear in specifying that employees shall suffer no loss of pay or credits to attend grievance meetings but, framed negatively as the clause is, we can find no Intention or wording that would impose a positive onus on the employer to pay expenses as well. While grievance handling is part of the employer's business, it is by no means the main business of the employer. Grievance handling is the joint business of the employer and the employee and in our view the cost-sharing involved in that has been fulty and completely set out in Article 27. 10 In McKie et al., GSB File No. 80/80 an unreported decision chaired by Mr. E.E. Palmer dated March 6, 1981, a meeting was scheduled on a ,:lay that was the grievor's scheduled day off which resulted in his having to use. his own time for attendance. As he was not paid for this time-he filed his grievance claiming entitlement to payment. On pages 6 and 7, the Palmer Board had the following to say concerning Article 27.7.2 (which is now currently Article 27.6.2]: Having considered the arguments of the parties, it is the view of this Board that the grievance be dismissed. In this regard, we agree .with the position put forward by the Employer regarding Article 27.7.2. Quite cleady, the meaning of this clause is that where a grievance meeting is scheduled dudng times when the gdevor ts scheduled to work, the Employer is required to permit him to attend this meeting, pay him for the time while he is so engaged, and, finally, treat the time when he is at this meeting as if he had worked for purposes of credits for vacations and the like. Again, having set out this requirement for payment, there is no obligation for the Employer to go further. The essence of the grievor's case wouid seem fo lie in the requirement of the Employer to schedule 'meetings during normal working .hours for at least all of the employees involved in the grievances that are covered by the Collective Agreement. A perusal of the Collective Agreement finds no provision to this effect. In the opinion of the Board, this is understandable as the vast maior~ty of members ct the' bargaining unit and undoubtedly management work a normal work week between Monday and Friday and grievance meetings would be scheduled at that time. Thus, the instant situation would be unlikely to arise. Unfortunately, if did in this case and the grievor is bereft of any remedy. Put another way, the time of scheduling meetings appears to be an oversight in the Collective Agreement. One would hope, therefore, that the problem could be I ~ 1t addressed in the next period of bargaining between the parlies. After having had an opportunity to review the jurisprudence that was presented to this Board, we are of the opinion that the grievance must be ' dismissed. The parties have, as was stated by the Barrett Board, intended to cover the entire procedure for the handling of grievances and the financing of same in Article 27. We are also mindful of the comments of Mr. Palmer in McKie et al that such meetings might normally be scheduled during normal working hours but that a perusal of the collective agreement finds no provision to this effect. While, as Mr. Palmer comments, the lack of directing attention to the time of scheduling meetings could'be considered to be an oversight his ~Jecision was released in February, 1981, and the same argument cannot be advanced today, ten years later. The Union alluded to.the possibilih/of abuses occurring if the grievance was unsuccessful. We take it that the Unio~ meant that there is nothing to prevent the Employei from scheduling such grievance meetings during times when the grievor is not scheduled to be at work. This would therefore result in holding grievance meetings at a time that would not interfere with the grievor's working hours. The Board hastens to point out that there was no allegation of abuse in the instant situation. Clearly, if such were the case and the evidence were to establish that abuses of this nature were occurring, then other considerations might apply. However, given the factual situation that is before us that is not a consideration for the Board at this time. Another concern expressed by the Union was over a memorandum that had been sent to all members of staff by the Superintendent of the Correctional Centre which was in relation to a recent decision of the G.S.B. inw~lving a Mr. Hayford. The first two paragraphs of that memorandum reads in part as follows (Exhibit 3): RE: G.$.B. AWARD OPSEU (HAYFORD) AND THE CROWN IN RIGHT OF ONTARIO (M.C.S:) The above noted award has now been received and I am sure has been discussed amongst staff. It is the type of award that can be misinterpreted inadvertently by some and deliberately by others. In order to avoid confusion or misunderstanding on anyone's part, '1 am issuing this mema to provide direction to each staff member individually, and to the staff of this Centre collectively. a) Orders and/or direction by a person or persons in a position of authoriN A Supervisor or Department Head has the autharity fa issue orders, instrucfians and direction to. staff members. A refusal to carry out and/or question and/or unreasonable delay in complying with such order, instruction or direction by subordinate staff will by its very nature place that person in a position of insubardinafion. Anyone who places himself/herself in a position of insubordination will be subject to administrative action, including being subject to an investigation and/or the disciplinary process .... This'memorandum dated February 6, 1991, was issued a short time prior to February 13 when the grievor was informed to attend the February 22 meeting. There was a concern that should the grievor fail to attend such a meeting then 13 he may very well opefi himsel~ to disciplinary action pursuant fo the above memorandum. Once again, such an eventuality did not occur. The grievor attended the meeting. Had the grievor been unable or refused fo attend the meeting and had he been disciplined as a result, he un~doubtedly Would have gdeved the disciplinary action taken by the Employer. Again, had such an eventuality occurred the Board would have had to deal with the issue but thi~ is speculative on our part and is not an issue that'must be considered at this time. Accordingly, for all of the foregoing reasons, .the grievance is dismissed. Dated 'at Kingsfon, Ontado, this 8ch day of october, 1991. C. Gordon Simmons Vice Chairperson S. Urbafn Membe~ D Montrose Member