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HomeMy WebLinkAbout1992-2856.James.94-02-24 - ( ( ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARiO /J'-~\.\ 1111 GRIEVANCE CPMMISSION DE "",... ;.. : SETTLEMENT REGlEMENT , . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO; M5G Z8 TELEPHONE/TELEPHONE (476) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100; TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 2856/92 IN THB HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351A (James) I Grievor - and - Metropolitan moronto Convention Centre Corporation Employer BEFORE: M Gorsky Vice-Chairperson T Browes-Bugden Member F Collict Member I I I I I FOR THE D. .Ellickson UNION Counsel Caley & Wray Barri~ters & Solicitors FOR THE R MacDermid EMPLOYER Counsel Kerzner, Papazian, MacDermid Barristers & Solicitors HEARING September 29, 1993 ._~--... -_.._~ '- - ~ 1 \ I ( l 5~ '~~ - 1 - o E-e I S I () N The Grievor, ,Jestlna ~Tames, filed a grievance on November 5, 1992 , in which she claimed a violation of the collective agreement based on the Employer 1 s havJ.ng introduced shifts I rotatlng It was Ms Jam~s' position that she was entltled to work a non-rotating re~ular shift, from 6 30 a m. to 3 00 porn , from Monday to Frlday, in the Front & Centre Cafe, being one o~ the departments operated py the Employer Ms J cune s testlfied that she has a seniority date with the Employer of March 15, 1988, and throughout her employment has worked in the Front & Centre Cafe Ms James' orlginal work schedule when she was hired was from I . 0 12 00 noon to 9 00 porn , and this situation continued for approxlmately a year When she worked the last mentloned shift, another employee of the Front & I 6 30 a m. to Centre Cafe worked the - 3 00 p.m. shift. When that employee left her employment, ln appro?Cimately 1989, Ms. James asked m~nagement if she ~ould work that shift and her request was granted She continued to work the latter sh i f t until November 2, 1992, when t.he Employer posted a change in the way in which shifts would be assigned to employees working in the Front & Centre Cafe I - I ( ,~ I f I. \. I .:..:t' I -;(l; - 2 - The rotatlng schedule that was J.mplemented on November 2, 1992 I ! replaced t4e fixed shift schedule that was in place prior to that time The system of fixed schedules was as follows 1 One full-time counterperson was permanently assigned to the 6 30 a.m to 3 00 p. m shift 2 Two full-time counterpersons were permanently assigned to the 7 00 a.m. to 3 30 p.m shift. I I 3. A full-time counterperson was permanently assigned to the 8 00 a m. to 4 00 p m. shift 4 One part-time counterpetson worked from 2 00 p.m to 4 00 p m. 5. One, part-time counterperson worked from 4 00 p.m to 8 Db p m. As a result of the change from permanent to rotating shifts, ~ all of the full-time counterpersons were required to rotate through the following shift schedule 1 6 30 a.m to 3 00 p.m. ( 2. 7 00 a m. to 3 30 p.~. 3 8 30 a m. to 5 00 p m. 4 10 00 a m. to 6 30 p.m. - - - - - ."- . ---~._- ~. I ( ! ,'?I iiii:~ - 3 - Onder the newly int:roduced system of rotatlng shifts, only one "\ part-time employee was required to work from 4 00 p.rn to 8 00 p m~ Onder the change from a fixed to a rotatlng shift schedule, each full-tline counterperson was assig~ed to work each of the noted shifts on a rotatlng basis, wlth an employee working a shift for one week before rotatlng to the next one for a week, and so on in like fashlon through the entlre shift schedule, WhlCh work schedule w~s then repeated Afte r Ms James notlced the change ln the schedules to be worked by the counterpersons in her dep~rtment, she asked Brigitte '-- Hae!?!en, the Supervisor bf the Front & Centre Cafe, why the fixed scbedule of Shlfts had been changed to rotating ones Ms Haesen lS - said to have replied that the change had been introduc.ed on a temporary basis 'ln order to see how it worked When Ms James concluded that the change was going to be permanent ahd not temporary, she communicated wlth a Union representatlve and flIed her grievance. t At the commencement of the hearing, counsel for the Union indicated that he was ralsing a prelimlnaty objection based on an allegation that the' grievance had been settled in favour of the Grlevor during the bourse of the grievance proced~re, and that the Board.' s only jurisdiction was with respect to whether the terms of the settlement had been carried out ) ( f ~~f' ,"(\ ~4.' - 4 - The alleged settlement rel~ed upon by theUn~on was sa~d to have been arrived at in the course of step number three of the grievance procedure step number three of the grievance procedure ~s set out in article 8.04 of the collective agreement, and ~s as follows A meeting will be held with the grievor's area steward and the Director of Human Resources wl.thin three ( 3 ) days after the Department Head has given his or her written reply The grievormay be required to be present at the request of e~ther party A representative of the Union may be present, if requested by either party. The D~rector of Human Resources shall give his or her written reply to the gr~evor's area steward w~th~n tnree ( 3 ) days of such meeting. Present at the third step meeting of November 18, 1992 were - the Grievor, Daniel Serbin, the business representative of Local 351A, Stuart Newbigging, the then Manager of the Front & Cent.re Cafe, and Laura Koch, Director of Human Resources for the Employer. Exhibit 3 represents the minutes of the meeting that were kept by Ms Koch's assistant, and are as follows GRIEVANCE MEETING MINUTES Wednesday, Nov~mber 18, 1992 This meeting was held in the President's Meeting Room at 2 00 p.m., to discuss Jest~na James' grievance regarding her hours of work Jestina is a fulltime Counterperson in the Front & Centre Cafe. Present Laura Koch Daniel Serbin, Union Rep. Stuart Newbigging Jestina James Jestina began by explaining that for the past 3 years she has wo.rked the 6 30 a m. to 3 00 p.m. shift l.n Front & Centre. ( ( ~. r..~ - 5 - The hours of work 1n Front & Centre were changed so that all counter staff are working rotating shifts ~nstead of straight shifts. As Jestina is the second highest in seniority in Front & Centre, she wanted to change her hours of work back to 6 30 a m to 3 00 p m as she does not like working rotating shifts with the other CQunterpersons stuart explained that in the order of "fairness" to all employees who work in Front & Centre, all staff were now working rotating shifts on a 4 week basis. This would prevent the same person from closing the restaurant everyday The restaurant hours of operation had not been changed. Danny informed everyone that because the hours of operat1on in Front & Centre had not changed and Jestina has higher sen10rity than the other Counterstaff, she has a right to maintain and keep her original hours of work Management cannot take a senior employee out of their shift without a reasonable explanation If the hours of operation had changed to accommodate the volume of business, then Jestina would not be able tomainta1n her orj,ginal shift. Laura ~sked that the Union contract be checked to ensure that seniority does or does not apply to hours stuart 1nformed Jestina that she would return to working the 6 30 a.m. to 3 00 p.m. shift when the next schedule is posted. It was agreed that Ms Koch, as the Director of Human Resources, d1dnot "give her written reply to the grievor's area steward within three ( 3 ) days of [the] meeting" as required, and the Union regards the matter as hav1ng been settled in favour of Ms. James when Mr. Newbigging indicated that she would be returned I to working the 6 30 to 3 00 sh1ft when the next shift a m p.m schedule was posted. -..-- -- ~ ~ -- -- --- ~ - ---- -- --- I - f ( I 3: tf;; - 6 - Ms James testlfled that she recalled Mr Newblgging saYl.ng at t,he third step meeting that he would change the schedule so that she wpuld once agaln work a steady 6 30 a m. to 300 p m shift Th.ree days later, when the schedule I she noticed new was posted, that she was still scheduled to work the newly lmplemented rotating shifts She went to see Mr Newb~gging and asked him why he had not changed the schedule. Mr Newbigglng lS sald to have replied that there was nothing that he could do about the situation because "they" told him tl',lat the rotating scheduie would be contlnued "for now, until further notice. " Ms. James had no furtner discussions with Mr Newbigging concerning the matter, and she is still required to work the rotatlng sh~ft schedule that was introduced I l It was Ms James' posltion that she was the senior counterperson, and, as such, was entitled to choose the counter s.h i f t that she had been worklng She was clear in her evidence that there was no doubt in her mind that Mr Newbigging had agreed to return her to her previous shift on a non-rotating basis, and that this was going to happeri with the next posting of the shift schedule for the Front & Centre Cafe Mt Serbin, who has been the business representative for Local 351A since July of 1992, testif,ied that hl.S duties include servicing grievances and negotiating collective agreements. I ~ I ( \ ~ "' I - 7 - Mr Serbin testif1ed that, pr10r to the 1otroduction of the rotating s h if t schedule, the Employer had a "cons1stent" prac.tice t.hroughout the different departments of allocating work on the - basis of an employee's seniority Some of the employees referred to by h1m who were subject to the prqctice were 1n the following departments kitchen, events serVl.ces, stewarding, full..:.t1me banquet He later amended his statement, when he testified that -. .there were some departments that were not covered by the practice because of the characterist1cs of the work 1nvolved there He referred to the "casual banquet" department where employees worked on a call-in basis Mr. Serbin testified that he had received a copy of the m1nutes of the meeting of November 18, 1992 from Ms Koch. On the basis of what had transpired at the meet1ng, he concluded that the "problem had been rectified." He was defin1te 1n h1S, view that after the meeting he and Ms James were satisfied that the grlevance had been settled, and he spec1flcally referred to the final paragraph of the minutes as, in his V1ew, evidenclng what was to be done as a result of the settlement Mr Serbin stated that he caused the grievance to be referred to arbitrat.ion on December 21, 1992 because of the perceived inact10n of the Employer 1n implementing the terms of settlement arrlved at on November 18, 1992 t { I. '~ - 8 - Ms Koch; has been employed by the Employer for approximately b;n years and 1S responsible for admlnl ster 1ng- the collective agreement, WhlCh 1tJ.cludes dealing wlth grlevances Ms Koch testified concerning her recollectl9n of the meeting of Nbvember 18, 1992, and referred to Ms James' compla1nt that her ( senlority rights had not been honoured. and that she had not been perm1tted to work her preVlOUS 6 30 a m to 3 00 p m. shift on a .( non-'rotating basis Accor<3.1.ng toMs. Koch, no settlement of the grievance had. be~n arrivJd at during the third step meeting or at ~ I any other time. She testified that she had informed Ms James and Mr. Serbin that she was unaware of any provis1.on ~n the collective agreement that gave an employee the right to maintain her sluft on oj a perr.1anent basis and be shielded from the introduct1.on of rotatl.ng shifts She referred to the penultimate paragra~h of Exhibit 4 1.n support. of her positl.on that no settlement had been arrived at, and that the Employer's position would only be for.thcoming after she -, J had examined the collective agreemen~ to satl.sfy herself, one way or the Dthe~, as to the valid1.ty of the Unlon's posltion~ -- .... i She acknowledged thatMr Newbl.gging had made the statement attributed to him in. the last paragraph of the minutes, but stated tha.t l.t was not made ln the context of a settlement but in the light of the earlier discussion l.n which she stated that ti.1e Employer's position would only be after she revlewed the / glven terms of the collective agreement She was emphatic that Ms James I i, ~ ( .y i' - 9 ,.. and Mr Serbin we~e l~formed that the request that Ms James be perman~ntly ~laced on a 6 30 a m to 3 OU p m shift wou~d not be a~lowed unless she concluded that suoh a rlght had been provlded for lFl the collective agreement. It was Ms Koc'h' s further eVldence that she pad also stated her posltion that Ms James and \ Mr Serbin were lncorrect 1n their understanding of the -- ./ requ~rements of the collective agreement ln relation to the Employer's rlght to lntroduce rotating shlfts that lnterfered with an employee's previous asslgnment to a fixed ~hlft ~ - The provisions with respect to seniorlty relied upon by the Union are found in ~rtlcle 11 of the collective agreement l ARTICLE 11 - SENIORITY 11 01 (a) Ah employee shall) not attain seniority within th~ department in which he or she is employed until he or she has worked fifty :( 50) ,days for the Em p 10 ye J:. ( he r e j.. n aft e r c a 1 led the "probationary period"). Upon at-taining seniority, the employee" s! seniority ln that department will be computed as having commenced on a day fifty (50) working days prlor to the date upon which he or she completed t~e probationary period and so attained seniority in. that. department (b) The layoff, termlQation or dlscharge of an I employee during the employee's probationary I period shall be at the sole and absolute discretlon of the Employer and shall not be a I dispute subject to grievance and arbitra~ion. 11 02 Seniorlty shall only be department wlde j Accordingly, an employee with seniority in one department shall not have ~eniority in any other department 11.03 There shall be one seniority list for ernployees employed in the Potroom/Dishroom and a separate seniorlty list for employees employed In the cafeteria / and departmental seniority shall not be applicable i I ~ __ 1 _. _ ~. ( I \ ! - 10 - 11 04 In all cases of promqtlon (except those ~n respect of positions excluded from the bargaining unit), and 1n all cases of layoff or recall, the follow1ng factors shall be considered ( a) departmental senior1ty (b) qualifications, skill, ability, merit and eff.iciency Where matters 1n factor (b) ~r-e relat1vely equal in judgment of the Employer, factor (a) shall govern; provided however, that Management shall not exercise 1ts judgment in an arbitrary manner 11.05 A seniority employee who, due to lack of work, is di~placed from his or her regular job will be assigned by the Employer to a vacancy in h1S or her department, provided the employee has the skiil and abil1ty to do the work involved If there is not such vacancy, the employee will be assigned to work be1ng performed by another employee with less seniority 1n his or her ( department providing the employee has the skill and ability to do the work involved Wherever used in this agreement the word "ability" shall mean presently possessed of' the accompl ishments which enaQle the person to perform the work required in accordance ~ith the Employer's quality and service "' standards 11 06 Where a,n employee with two ( 2 ) years or more senior1ty applies for and 1S transferred to another department, he or. she shall comm~nceaccumul at i ng and shall only accumulate senior1ty in tfle new department once .he or she is so transferred and shall lose his or her senior~ty in the department from which he or she is transferred one ( 1 ) year from the date of the transfer While an employee is retaining his or her former seniority in his or her former department as herein provided, he or she m.::tY only exercise such former senlority if he or she is laid 9ff in the new department. Ms Koch testified that after the meeting of November 18, 1992 she reviewed the provisions of the collective agreement and stated that she could find no provision that supported the position of the Grievor (or any employee) to be able to rely on her seniority to / ( "\( 1 ~ - 11 - retain the r1ght to w.ork a previously asslgned non-rotational shift Ms. Koch aiso testified that she spoke to the then Director of the Food and Beverage Department, Bernd Gabel - who 1S no longer with the Employer - who indicated to her that because of fluctuations 1n business the previously arr1ved at decis10n to introduce rotating shifts, as above descr1bed, would be maintained, and we conclude that it was because of this decision that Ms. James was not returned to her previous fixed shift Ms. Koch's recollection of her further dealings with Mr Serbin in relation to the grievance, subsequent to November 18, 1992, was somewhat imprecise She stated that she had had a number of conversations with him "mostly over the telephone" at which time ~ the grievance was d1scussed, during which conversations she had informed him that the grievance was not being allowed and the Grievor would not be returned to her preV10US shift on a non- rotating basis She stated further that, at no time, dld Mr Serbin tell her that he and the Grievor regarded the grievance as having been settled On the basis of her response to questions asked in re- examination, it appears that Ms. Koch informed Mr. Serbin, sometime between November 18, 1992 and December 16 or 17, 1992, of the Employer's position that the Grievor had no right under the -- --- - - - -. . - .-.- -- -- - "- 4 \ ( ~ '1'~ " - 12 - dollecttve agree~ent to work a permanent s h-~ f t According to the evidence, the memorahdumof agreement with respect to the current \ collective agreement was s~gned on e~ther December 16 or 17, 1992. On reviewing the evidence, inpludlng the grlevance meeting minutes, the accuracy of which was not serlously challenged, it appears that all that was promised by the Employer on November 18, 1992 was that Ms Koch, on its behalf, would reVlew the collective agreement ~n order to ascertain whether the Unlon was correct in lts view that an employee could "maintaln and keep her original hours of work" pursuant to the seniorl.ty prqvisions of the \ collective agreement Accordl.ng to Ms Koch; upon being satl.sfied that there was no such requirement in the collective agreement, she not.rfied Mr Serbl.n~ Mr Serbin dl.d not deny 'that such conversation had tpken place Ms Koch did not remember whether she had ever put he~ reply in writing, and we arti satisfied t.hat she did not Counsel 'for the ,Union urged us to allow the grievance on the ~basis that the written reply provlded for in step number three had not be~n furnished by Ms Koch within the three day period referred to If such a drastic result ~s to follow, we would expect some provision in the collective agreement to that effect We, are satl.sfied that Ms. Koch did respond to the Grievor's representative, in this case Mr. Serbin We would have expected "' that it Mr. Serbin was relying on the alleged settlement, he would - ~ - ( (... 1]'. ~ I . - 13 '- I have made his position known immed1ately. However, no reference to I settlement was made until the commencement of the hearing. a .The delay 1n raising ,the existence of an alleged settlement was not satisfactor1ly explained, and the Union position that there was one 1S not supported by the evidence To the extent that the evidence is equi voca.l , the Dnlon's position lS not supported by its maintenance of silence about the settlement until the commencement of the hearing Although it 1S not necessary for a settlement to be evidenced in writing, a board will requ1re clear and cogent evidence support1ng the existence of one. On the f~cts before us, at best, the existence of the settlement relied upon by the Union 1S unclear and -the behaviour of all parties subsequent to the alleged settlement belies its existence Counsel for the Union argued that if the Board did not find that the grievance had been settled as alleged, he was relY1ng on -the past practice of the Employer whereby shifts were awarded to employees on the basis of senior1ty, and as the Grievor was the person with the most seniority worklng as a counterperson 1n her department, she was entitled to continue to work the shift of her choice. It was submitted that the Employer was precluded from introduclng rotating shifts, if this 1nterfered with an employee's superior right ~ ( ( \ -j - 14 - ! It was the further pOsition of the Un~on that the act10ns of the Employer in instituting the rotating shifts were contrary to the provisions of art1cles 1, 3 and 11 of the collective agreement I Article 11 has already been quoted Articles 1 and 3 are as I follows ARTICLE 1 - PURPOSE 1.01 The general purpose of this agreement 1S to establish aQd ma1nta1n mutually satisfactory working conditions, hours and wages, all as set out here1n and to provide the applicable procedure fbr settling gr1evances which may arise hereunder, so as to maintain harmonious relat10ns between the Employer and employees cov~red by this agreement and to assist the Employer 1n the most eff1c1ent operation of 1tS business ARTICLE 3 - MANAGEMENT RIGHTS 3 '01 It is the exclusive function of the Employer to manage, which function, w1thout 11miting the generality of the foregoing, includes the right to determine, (a) employment, appo1ntment, complement, organ1zation, assignment, discipline, d1sm1ss~l, suspension, work methods and procedures, k1nds and locations of equipment and class1ficat1on of positions; and (b) merit system, training and development, appraisal and superannu~tion. It was submitted that the actions of the Employer represented an unreasonable exercise of management r1ghts and were cont.rary to the many years of past practice and current practice said to apply to all of the Employer's other departments The Union also argued that the Employer was estopped from altering its. past practice. - ----- - ----- .. - u -~ ~- ( ( ca ; - 15. - Counsel for the Dnl0n submitted that whlle the Employer could alter the hours of work and the scheduling of shifts pursuant to ltS management rights, this was not an unfettered rigl1,t and was subject to the spec1flc provisions of the collectlve agreement as well as certaln implied provislons WhlCh he lnvited us to find existed Ms Koch testlfied that ln some departments it was the Employer's practice to award hours when there was a shortage of work on the basis of senior1ty, but test1f1ed that she was not aware of whether seniority had a role to play 1n the allotting of I shifts. Later she acknowledged that she could not disput~ the evidence of John Horne,' who testlfied on behalf of the Union 1n this rega-rd Mr Horne, who has been a shop steward, has been employed by the Employer for seven years in the Events Services Department, and prior to that time had been in the Material I Handling Department His evidence was that there were two shift~ I in the Events Services Department 7 00 a m.to 3 30 p.m. and 3 30 p.m. to 12 00 midnight, and that sh1fts ln that department were allocated "basically" on senior1ty According to Mr. Horne, this practice had been in effect prior to 1990 when he was terminated and was still in effect when he resumed his employment with the Employer ln 1992 He also stated that shifts 1n the Material Handling Department were also allocated on the basis of an employee's seniority. . I ( t ~ /- - 16 - Mr Horne acknowledged that there was a provision ln the collectlve agreement (article 22 03) that deals with the assignment of per~ons to perform m~ter1al handl1ng work That article is as follows 22 03 With respect to ass1gning persons to perform material handl ing \vork, the Employei and, the Dnlon hav~ i agreed to the following (a) The eight most senior full time employees employed in the event serV1ces department who have the skill and abillty to perform the work lnvolved shall be des1gnated as material handlers. (b) Wherever there is mater1al handling work to be performed by the employees of the Employer, the Employer shall aSS1.gn such work from amongst 'the e1.ght employee~ selected pursuant to paragraph (a) on the basis of their skill and ability to do the work involved (c) Whenever the Employer requires more persons to perform material handling work than the eight described in paragraph (a) , it shall be entitled to use casual employees to perform such work (d) The employees who were selected in accordance with paragraph (a) herein shall only be paid the material handling rate while they are performing material handling work Otherwise, they will be paid the normal rate of the Event Services Department (e) Any casual employee ass1gned and performlng material handling work shall receive a rate of pay not to exceed the rate of the other full t1.me employees 1.n the Event Services Department (f) As the volume of business of the Convention Centre increases including 1.n particular the volume of material handling, it 1.S recognized that the manpower requirements 111 the Event Services Department may increase as well In the event of such 1.ncreases oyer time, the complement of those to be designated as material handlers 1.n accordapce with 22 03(a) -. I \ I j i ( \ \ '. ~ - 17 _. -may increase such that from time to time ! approximately 50% of the employees employed l.ll the Event S e r vie e s () e par t m eJ'l t are so designated ! I There 1S nothing in art 22 03, or elsewhere in aJ:t 22 that deals 1 with shifts apPli~able to the Material Handling Department . I Carlos Costa lalso testlfied on behalf of the Union Mr Costa has beetl on the Executive Board of the Local for approximately a year and was al steward ln the Maintenance Department for I approx1mately I and half He stated that he could only a year a testlfy about the allocation of shlfts ln the Malntenance I Department It his evidence that shifts in the Maintenance was I Department I accordance wlth employee's are allocated ln an .I seniority In I . . t' he acknowledged that only cross-examlna lon one 1 shift did not rota~e, and that there were other shifts that rotated and that seniorit} did not apply to them I The most thai we can discern from the evidence is that there were a number of litu~tions where shift preferences were honoured I I i on the basls of an employee's senlorlty The role of seniority, as . I l was clear from the evidence of Mr Costa, was not uniform ln i ielatlon to an em~loyee being ablE;l to pick a shift where he would work on a 1 . All could conclude with certainty permanent basis we I I ., from the evidenc~ was that, in some departments, senlority was - 1 1\ utilized in the assignment of work , -- - ( f \. i I " I - 18 - t ) Counsel for the Un10n stated that 1t was not h1S pos1t1on that management could lot alter the hours of work and shift schedules '"1 ". It was his pos~t1on that management's right to make such ) alterations was not unfettered and that, in any event, the Employer was estopped froml changing its past practice 1n the department where the Grievor L9rked (Front & Centre Cafe) where employees were prev10usly perw1t1ed to choose the shift they wished to work on a ~ermanent basis, 1elYing on their senior1ty. Schedule "A"I to the collective agreement deals with the subject of "hours bf work ~nd overtime" Article A 01 of Schedule "A" 1S as follows: It is .hereby expressly understood and agreed that the provis1dns of this Schedule are for the purposes of computi~g overtime and shall not be construed to be a guarant~e of or limitation upon the hours of work to be done per day or per week or otherwise, nor as a guarantee of working schedules / It 1S evident frJ!ll reading Schedule A that "working schedules" I encompasses the corycept of both fixed and rotating sh1ft schedules. ! Art1cle A 141 of Schedule A to the collective agreement . provides Wherever possible, shift schedules will be arranged to give employees sixteen (16) hours between shifts Article A 14 recog~izes that there may be rotating shift schedules and that article Js intended to give an employee 16 hours between I shifts Article] A.14 would encompass e1ther rotat1ng shift I schedules or cases where employees were scheduled to work non-fixed I I j 1 ; .~. ( ( '- ! \" - 19 - " non-rotating ~shifts The fact that artlcle A 01 does not guarantee -'"' . working schedules means that employees do not have a right to work ~ a fixed shift and that the Employer may sqhedule employees to work different shlfts WhlCh may be rotating or non-rotating Coumiel for the Unlon submitted that the dec J. s lon to implement rotatlng sblfts would have to be a reasonable one, whlch decislon he deflned as one having a valid underlYlng business purpose However, as presented by counsel for the Unlon, it dld not matter whether the Employe.r had, in good fal th ,. l,mplemented a system of rotating shi!ts wlth a Vlew to obtalning the benefits of a more flexible work forceI if the eVldence dlsclosed that thlS would not be the in~vltable result of ~mplementing the declsion It was not the buslness purpose that mattered, bu.t whether 1 t 'vas successfully reallzed \ The Union did not question the good faith of the Emplo~yer in lmplementing the ~ystem of rot;.ating shifts, but d-id question the reasonableness of the decision, with the reason<?-bleness of the I decislon to be determine~ by whether lt did lnfact aQhleve some leg J_ timat:e buslness purpose From the perspective of the Union., the imrlementation of the rotating shlft schedule could not achieve elther savings or flex.lbility, and hence the decision to do so was ( "unreasonable " .i ( \ ;- -/ ( ( ~' I r jj ... - 20 - An examination of the practical operation of the "\ implementation of a business decision mlght disclose that it could not be regarded as a val1d exercise of a management rl.ght because the decision 1S not one that management, behav:J,ng reasonably, could have arrived at on the basis of the facts before 1t Not every business decision will achieve its purpose, but this does not make the decision, based on the implementation of management rights, unreasonable On the facts before us, 1t lS not possible to arrive at a conclusion, with certainty, that the declslon of management to implement a rotating shift schedule will achieve the goals of effic1ency both from a financial and flexlbility of operations I perspective Nevertheless, there was nothing to suggest that this was not the ~enu1ne intention of management wh~n it implemented the policy. From its perspective, lt has, at least, ach1eved the --- As we understand the benefit of having a more flexible work force meaning of the word "reasonableness" 1n the context of an obligat10n on management to act reasonably before it can alter the work schedule, it has not been demonstrated that its actions in the case before us were unreasonable On other facts our decision might be otherw1se. However, we are not permitted to 1mpose on management out V1ew of what 1.S a valid business decision, where the purpose in making the decis10n was business efficacy, and it otherwise acted in good faith. Because we have found that management was genuinely motivated by a legitimate business purpose, we would not interfere with that decision even if we foul1d that it was unlikely to achieve its goal It was enough that ( I V. I . \ - 21 - management, utilizing the facts before it, could reasdnably have made the decision to implement a rotatlng shift schedule Counsel for the Union relied on a number of cases 1 Reference was made to Re Consolldated-Bathurst Packaging Ltd. (st. Thomas Division) <1981> , 1 LAC (3d) 10 (Adams) 10 In that case, the board concluded, at p 22, that otherwise "unfettered" management rlghts must, nevertheless, be exerclsed ln good falth. We find no fault with such conclusion and, on the evidence before us, find no evidence of bad faith on the part of management in arriving at its decision to implement rotating shifts In fact, the Union suggested none. '" 2 Reference was also made to Re Government of Nova Scotia (1990), 13 L.A C. (4th) 322 (Cromwell). In that case, the grlevors grieved the termlhation of a modlfied work week schedule that had ) been in place for a period of a year and the main issues were with respect to "the correct standard of arbitral reVlew of the employer's decision to terminate the modified work week schedule and whether the employer's declsion passes reVlew according to that standard. " In that case, the collective agreement specifically provided for the introduction of a modified work week schedule an<i for a return 1;0 regular times of work where certain conditlons were met ------ --- _. -- -- -- .- - - - -- ., I ( l. I ..' -4\ - 22 - The union's position was that when the employe~ decid~d to return I to the regular hours Qf work it could do so ol1ly if one of t.he I condltions set out in the collectlv~ agreem~nt existed The role of the arbitrator was said to be "to reV1.ew thl? ",employer' s determlnation for its correctness" Wl th respect to one of the condi tions,( that the modifled work week be "operationally impractical for ot.her reasons," the role of the arbltrator was also said to pe to reVlew the decision "to determine whether the Employer's dec1.sion was arbitrary, discrlmlnatory or taken 1.n bad faith."(at p. 325) The position of the employer was that the standard of arbitral 1 reV1.ew was "simply to determine \vh~ther the management decision was made re~sonably and in good faith fgr operat1.onal reasons " J ~ ; At P 330 df the Government of Nova Scotia case, the arbitrator referred to Re.New vista Care Home and BeND (1988), 1 L A.C (4th) 227 (Larson) where the board expands on the requir~ment qf good faith decision-making The union ther~ challenged the decision on various grounds, lncluding that it was taken in had faith The arbitrator observed (at p 236) ( . the requirement of bona fides relates to' the state of ;mind of the employer ..I.Lreqlures that a contract.ual power be exercised for the purpose for which it is glven and no't for some other purpose Even if that objective was not directly realizable .b~ the changes. it does not denigrate from the fact that the bbjectivewas legitimate. ~ I i I ii. ~ - 23 - (Emphasls added in the Government of Nova Scotia case ) The above quotatlon has direct appllcation to the facts of the ca'se before us It is also ~ign1ficant that the 16lst noted quote j was placed wlthln that port10n of the decision dealing w1th "the work scheduling cases " Counsel for the Union relled on the Government of Nova Scotla case for the strong statement 1t made with respect to the protectlon of senior1ty rights at pp 331--) This statement was made, however, 1n relation to the portion of the case dealing with "job posting cases" which frequently give r1se to considerations qU1te dlfferent from those that are before us At pp 331-2 of the Government of Nova Scot1a case, the board c states It has long been recogn1zed that seniority rights are among the most important won by trade unions It would be inconsistent w1th the provision such as one requ1r1ng promotion accordlng ~to seniority where qualificat10ns are roughly equal to leave that determination to the vlrtually unfettE~red d1scretl.on of management The requirement for more robust arbitrill reV1ew 1S found in the seniori.ty provis10ns which either expressly or by necessary implici'tioh constrain whatmig'ht otherwise be management's unreviewable authority to assess employee qual1fications. We do regard the Employer's decision, 1n the case before us, to be .subject to standard of correctness, l.n the sense that the Board will dis llow the decis10n of the Employer if it would have arr1ved at a different conclusion concerning the introduction --- -~.- ___.__n___ ( ( ~ .' - " - 24 - of the rotating shift system. For the purpose of dec 1d ],-n~j this case, we have accepted a standard of good faith and reasonableness, but not one of correctness, as we are, after all, dealing w1th a case where the collective agreement specifically indicates that there is no "guarantee of working schedules It. The effect of the prov1sions with respect to seniority 1n the collect1ve agreement cannot ~mpose the more "robust" standard of reV1ew envisaged 1n. the Government of Nova Scotia case where the obl1gat10n placed on the employer was to do something (in that case to make a decision w1th respect to the determ1nat10n. of a form of work scheduling) 1n accordance with certain prescribed standards S~ch a fact s1tuat1on is absent in the case before us In any event, the board in the Government of Nova Scotia case states, at pp 335 . The issue for ~e, then, is whether the Employer's decision that one or more of the factors set out in art 14 ll(a), (b) and (c) were present 1S a decision that a reasonable person could reach having a regard to the relevant factors Even if the test to be employed in the case before us is the same as that found in Government of Nova Scotia 1n the inuneded1ately above quoted extract, we could not say that a reasonable employer could not have reached the decis10n made by the Employer 1n this case, having regard to the relevant factors 0 - In the Government of Nova Scotia case, the Board also considered whether the employer's actions could be considered to be arbitrary, 1n the sense (at p 335) that "it 1S capricl.ous or \ - _..- - --.-- -., - ----- ---- C I \ ':1. - 25 - perfunctorily 19nores the ,]_~terests of employees," in which case it "is an unreasonable decision and is subject to the sort of review I think appropriate here " At pp. 335-6 of the Government of Nova Scotia case, the board states A decision that is made arbitrarily in the sense that it is capricious or perfunctorily 19nores the 1nterests of employees is an unreasonable decis10n and is subject to the sort of reV1ew I th1nk approprlate here I also take to heart the comments 1n Prinesdomu that review for arbitrarlness must be sensitive to the practices, conditions and constraints of the particular setting 1n which the dec1sion is made I th1nk arbitrator Outhouse captured the correct approach very well when he said in the Leeming, Joseph and Sampson cases (above) that the employer must act reasonably having regard to both operations requirements and the employee' interests in the matter for decision I think that art. 14.11, by sp~cifYlng the conditions ~nder which the employer may require a return to regular hours and by omission of any language granting it complete discretion In the matter, makes it clear that the employees' interests must be taken to account - fairly weighed in the balance - when the decis10n 1S made The employees' interests, of course, do not govern. But the collective agreement require~, in my- opinion, that the~r interests be taken into account and not simply ignored in the decision-making process under art 14 11. \ I apply whether management's The standard I should 1S decision that the elements set out in art. 14.11(a) , (b,) or (c) existed was unreasonable A dec1sion 1S unreasonable if It 1S one that a reasonable person, taking account of the relevant factors could not reach A decision 1S also unreasonable if, in making it, the decision-maker fails to consider or gives no welght to relevant interests. The facts in the Government of Nova Scotia case are different from the ones we are faced with, in that the Employer, in the case ~ - ~ ( ( " \ - 26 - before us, was not faced with a set of conditions that it had to consider in arriving at its decision Nevertheless, even iF the ~- rule enunciated 1n the Government of Nova Scot1a cas'e is appl1ed here, we cannot find that the Employer gave no weight to the employees' relevant interests The decision was one that a reasonable employer, taking account bf the relevant factors faced by it, could have reached There was a serious downturn 1n convention business, and the Employer was looking for various means of rationalizi~g its operations, and that is the situation that it was responding to 1n chang1ng to a system of rotating shifts There was also evidence that the Employer considered the unfairness of ha,ving some- employees work "preferred" shifts to the exclus10n of their colleagues and the effect of so doing on employee moral. The Grievor, in the case before us, has an evident interest 1n m,a1ntaining her r1ght to work the fixed shift she had previously --- worked However, there was evidence to 1ndicate that the 1nterests of all of the employees work1ng 1n the Front & Centre Cafe who would now be required to work r-otating shifts had been considered 1n arr1v1ng at a decision to implement such shifts. Accordingly, the decision could not be considered to be unreasonable on the basis that no weight was given to the relevant interests of the persons work1ng in the Front & Centre Cafe It 1S not only the Grievor's interest that the Employer had to be concerned with, but also that of the other employees -- ...- -,-- -"- -- ---------- ( of" r. " -! .i '- 27 - Counsel for the Union referred to a number of cases in support ) J from requirlng of an argument based on the Employer being estopped the Grievor to work other than the fixed Shlft that she had prevlously been assigned to (1) Counsel referred to .Re Kraus Carpet Mills Ltd. (1991) , 23 LAC (4th) (Marszewski) In that case employees of the employer filed a group grievance alleging that the employer had changed their regular working hours contrary to the provisions of the collec'tive agreement Prevlously, the employees had worked steady day, afternoon or nlght shifts. The new system of rotating shifts requ1.red each employee to work the day shift for two weeks, the afternoon shift for two weeks and the night shift for two weeks. Counsel for the unlon argued (at p 85) that the employer had ;contravened the provisions of the collective agreement and that its actions "constltuted an unreasonable exercise of management's rlghts and ran contrary to approximately 15 years of past practice In the alternative, counsel argued that the principle of estoppel by conduct should be applled to prevent the company from establishing and continuing to run its operation wi th rotatJ.ng shifts " The arbitrator, at p 96 of Kraus Carpet Mills case, found that there were specific provisions of the collective agreement that gave employees "a right to bid on vacancies based upon specific, posted shifts " The arbitrator also hoted (lbid ) that ( ( .'t - 28 - "This agreement ties the employees' preferen~e to a particular shift to their seniority rights " This 1S not the case in the matter before us At p~ 97-8 of Kraus Carpet Mills, the arbitrator states In the last alternative, even if 1t were concluded that the collect1ve agreement clearly favoured the company's interpretat1on, wh1ch enabled it to unilaterally impose rotating shifts upon its employees, given that the un10n relied to its own detriment upon the company's past failure to enforce 1ts Sti"lCt .rights, and therefore that the un10n d1d not seek to amend the terms of the collective agreement, I would have found that the pr1nc1ple of estoppel by conduct, operated to prevent the company from un1laterally imposing rotating Sh1fts upon its employees We are satisfied that when the current collective agreement was being negotiated the Union was aware of the fact that the Employer had implemented the rotating sh1ft schedule If an estoppel existed at that time, the action of the Employer ended it Counsel for the Union argued that there was no reason to atteropt to seek to amend the terms of the collective agreement because of the alleged settlement that. it had rel1ed upon As noted, above, it ought to have been apparent to the Union that the Employer had not agreed to a settlement with respect to the claim of the Grievor There 1sanother difficulty with the assert10n by the Union based on its estoppel argument Even lf the Union believed that the instant Grievance had been settled, the response of the ./ I; ( I ''t' r , ~ - 29 - Employer: J,.ndicated that tIus was not the understand10g of 1bs -- representatives Assuming that there had been an estoppel with J;'espect to Ms James, Ms Koch had ended It by her commun1catlons toMr Serbin In the' circumstances, the explanatlon of Mr Serb1n for, not att.emptlng to negotiate such a provislon lacks .substance \, 2 Reference was made to Re Maple Lodge Farms Ltd. <1991> , 24 LAC. (4th) 211 (R M Brown) Counsel for the Dnlon relied .upon - 'the statement In that case, at p 220, relYlng on the City of Kitchener (1,983) , LAC ( 3d)' 47 (Saltman), a't p 53 Obviously, it does not matter whether or not the collective agreement deals with the subject-matter of the estoppel Slnce the essence of an estoppel lS that the collectlve agreement cannot be relied upon Thi's sta,tement was relied upon 1n support of a conclusion (at ) p 220) that " there 1S no more reason to requ1re an explicit <, representatlon before enforcing a compensation practice on the \ basis of estoppel where the agreement lS silent on the matter ln ) qispute tha~ where there lS a spec1fic provision ln the contract " On the fact's before us, the practlce relled upon by the Uni.on is of allowingerilployees in the Front & Centre Cafe to select their shift on the basis of their senlority That practice mlght, at best, be seen as an lmplied representation that en~loyees_ would have flrst right to a shift based on their seniorlty as long as sq.ch shifts are not rotated. Thus, the Dnlon might be able to argue, if a system of fixed shifts had been retained, that the Gri~vor could ,- not be moved from her shift.: and that shift given to a junior -~ -' . - - c ( 't - 30 - empl'oyee That is not the case here, as no one has "property" 1n a shift under a rotating shift schedule 3 Heference was also made to He Consumers_ Glass Ltd. (Milton) \ (1986), 24 L.A.C ( 3d) 309 (Stanley) In that case the grievance related to the employer's chang1ng the rotation system on three bottling/packag1ng llnes The rotatlon system that had orig1nally existed came into being as a result of representat10ns made by employees withi.n months of the plant open1ng The rotation involved moving trom a visual inspect10n job to packaging and then ~ rotating to the other lines, and a break per10d The ch.ange that was unilaterally introduced by the employer was that the one automatlc llne was taken out of the rotat1on system so that I employees would stay on that line for the complet~ shift, although they continued to rotate between jobs on that line. They continued to rotate between these var10US lines on a shift-by-shift basis I At P 315 of the Consumers Glass case, the. arbitrator states Counsel for the employer argues that the right which is intended to be forestalled by the application of the doctrine of estoppel must be a specific right in the collective agreement and cannot be a "management righ,t" couched 1n general terms. She relie~ on what was said by arbitrator Hinnegan in He CIP I nc . , Container Division and Canadian Paperworkers Union. Local 343, supra In my V1ew, statements made 1n that case, cannot be taken as broadly as suggested by counsel for the employer, and must be considered in light of the case which was being decided In that case the union was seeking to set up an \ estoppel to preclude the employer changing smoking rules on the basis of an earlier referral of the issue o~ smoking 10 the plant to the plant health and safe'ty committee. The arbitrator found that there was never any ..- / c: ,. ( " r> - :31 - representatlon made by management on the issue of smoking As noted, above, if there was a representation made by management with respect to the rlght to work a speclf1c Shlft " it, was in the context bf a system of non-rotat1ng shifts At p 316 of the Consumers Glass case, the arbltrator states Arbitrator Weatherill 1n concludlng that case made specific reference to what V1scount Simonds said in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electr1c Col Ltd. , [1955] 1 W.L R. 761 at p 764, that 1t should not be supposed that mere acts of indulgence are \apt to create rights I would d1stinguish the case before me by saYlng that this lS not a situation where we have mere acts of indulgence, the basis of the estoppel lS not an act of indulgence The basis of the estoppel lS a representation made, at the bargaining table, that the employer was content with the existing system of the rotation of employees, that they had no intentlon of changing it, and therefore there was no need of the union pursuing an effort to enshrine that system ln the terms of the collective a,greement There is a fundamental dlfference in the case before us where there were no representations made by the Employer at the bargaining table that it was content with the existing system of fixed Shlfts and had no lntentlon of changing lt At the very least, the Unlon was aware of what the Employer had done ln lntroducing rotatlng shifts and that the matter was anything but settled 4. The Union also relied on Re Corporation of Clty of London (,1990) , 11 LAC. (4th) (R J. Roberts) In that case, the union in a policy grievance and the grievors in a group grievance claimed that the employer wa~ estopped from discontinuing payment of shift ""'-.--- - - - - __ ,I - ( ( :!" \ I \ - 32 - -' f premium to parking meter enforcement offlcers untll the explration of the 1989-1991 collective agreement Although the employer conceded that it was estopped until the expiration of the 1987-1988 collective agreement, it submitted (at p 320) that the estoppel termlDated at that pOlnt beqause the unlon had adequate notlce of .the lntention of the corporation to enforce its strict contractual rights The employer submitted that (lbid ) ''If the union wanted to guard against: that, lt should have nego,tiated adequate language lnto the coliectlve agreement to provide for shift premlUffi for the grieving employees " / On May 1, 1988, the parking maintenance enforcement officers were given notice that a~ of May 1, 1988, they would no longer be ln receipt of shift ,premlum Thereafter, in May of 1988, the grievances before the Board were filed. Later on, negotiations ;- were en'tered for the 1989-1991 collectlve agreement which was execut,ed on March 21, 1989 Both parties agreed that the union did not lay on the 'table any proposals designed to reinstate shift premium for flarking meter enforcement officers durlng the negotiations It was the employer's posltion that the estoppel I I which had been created by its long-standing past practice of paying A shift premium ended with the termination of negotiations for the 1989-1991 collective agreement because I the unlon had adequate not. ice of management's intentlon to terminate the practice aDd ample opportunity to negotiate provlsions securlng payment of the shift premi,um \ ( (. , . - 33 - The posltion of the union (at p. 323) was that ,~t had a right to rely upon its "leg1timate recourse to the grlevance procedure and was not obligated to raise the matter ln negotiations II In support of this submlssion, lt was emphaslzed that not only did the unlon base its claim for payment upon the doctrlne of promlssory estoppel but also upon construction of the relevant provls19ns of the collective agreement In other words, the grievances claim both equitable and contractual rights to the' payment of shift premium. The board concluded that the estoppel had not come to an end (at p. 324) . because we have found that the union had at least a prima facie case that the existing language of the collective agreement, lnterpreted in light of negotiating hlstory and long-standing past practlce, a 1 ready provlded for payment of shift premium to parking meter enforcement officers, we find that the union was entltled to pursue its rights under the grievance and arbitration procedures of the collective agreement without risking termination of the estoppel. Having taken the good faith posltion that the existing language of the collective agreement already required payment of the shift premium, the union could not be obligated to negotiate new lc.mguage ln the collective agreement to gain the same objective The law providlng for termination of estoppel cannot be taken, this far It never was intended to be used as a lever to force one side to accept the other's interpretation of disputed contractual language and negotiate new language on that basis. So long as they can make out a prlma facie case for their conflicting interpretations of contractual language, both sides are entitled to test them at arbitration before suffering the consequences of having one interpretation or the other rejected The termination of an estoppel, whose function, as here, is merely to preserve the status quo ante, does not even arise for consideration until then. Similar observations were made in Re Com'r of ( ( '. ~ - 34 - Northwest Territories and Northwest Terr1.tories Public Service As'sn. (1986), 24 LAC (3d) 132 (Hope) Accordingly, we conclude that the estoppel 1.n thl.s case continued beyond the negotiat1.ons of the 1989-1991 collect1.ve agreement It w1.11 not terminate until after the parties have had an opportunity to negotiate in light of our award, 1..e., upon execution of the succeeding I collective agreement There was nothing presented to us that would cause us to conclude that the Union had "at least a prima facie case that the exist1.ng language in the coilective agreement, 1.nterpreted 1.n the light of negotiating history and 10ng-stand1.ng past practice " I . ! prov1.ded for a restrictiorl on management to implement rotat1.ng I shifts. Accordingly, the Union was not, as was the union in the Corporation of the City of London (at p 324) "entitled tOt pursue I I its rights under the grievance and arbitration procedure of the I collective agreement without risking termination of the estoppel. " Unlike the situation 1.n the latter case where there was a . . prima facie case, here, there was no basis for the Union to avoid the obligation to negotiate new language 1.n the collective agreement to gain an objective which clearly did not exist in the previous agreement. This 1.S not a case, as was the case 1n Corporation of City of London, where the Employer could be seen to be using the termination of an estoppel as "a lever to force one side to accept the other's interpretation of disputed contractual language and negotiate new language on that basis " (At P 324) The Employer relied upon Re Corporation of City of London ( supra) , Re Lawson Packaging. Division of Oxford Paper Boxes Ltd. ( ( I . - 35 - (1977), 2 L A.C ( 2d) 408 (Weatherlll) and Re Thampsan General Haspital (1992), 25 LAC (4th) 423 (Yast) In the latter case, the grievor flIed a grievance that the emplayer had unjustly and ( unreasanably changed her regular shift af 7 30 a m to. 3 45 p m to. \ ) that af 12 00 naan to. 8 00 p m The grievar had warked far the employer far mare than 17 years fram Manday to. Friday and her haul'S af wark were 7 30 a m to. 3 45 p m. until January 13, 1992 when her haul'S were changed to. 12 30 p m. to. 8 45 p.m and she filed a grl,evance after belng infarmed that the change was abaut to. take place \ At P 431 af the Thampsan General Haspital case, the baard states . the [emplayer] did nat act reasanably because it had nat cansidered the Grievar's senlorlty (albeit that the callective agreement daes nat pravide far chaice af shift by seniarlty) 0.1' balanced her lnterests, needs and wishes with its awn, nar had it lnvestigated the likely impact, af the change ln the Grievar's haul'S af wark, the result af which has been that the Grievar is less able to. do. her jab praperly. . . [Caunsel] made the paint that the [emplayer] was abliged to. act reasanably, fairly and ln gaad faith and far valid business rea sans in changlng the Grievar's haul'S of wark At p. 434, the baard states Nathing ln the ca~lective agreement precluded Ms Salman fram making the change ln the Grievor's haul'S af wark, natwithstanding the latter's interests, needs, wishes, seniarity and rale as a unian steward This lS nat a case slmllar to. Re Shaughnessy Haspital Saclety 0.1' Re Nava Scatia, where a pravisian ln the callective agreement was vialated, nar lS lt similar to. Re Dauglas Haspital Cen~ where no. I (" co I I , " - 36 - sufficient reason was glven for assigning addit10nal duties 1n different areas of specializat10n to nursing supervisors Discussion and Decis10n For the reasons above set forth, we have concluded that there was nothing in the collective agreement which required the Employer to retain fixed shifts. Article A 01 of Schedule A to the , collective agreement 1S clearly to the contrary Nor have we found that the seniority provisions of the collective agreement (article 11) are such as to 1mpose on the Employer an obligation to retain fixed shifts with employees being able to choose the1r shift in accordance w1th the1r seniority Nor do we find that the Employer has acted in bad faith in implementing the rotating shift schedule, and its decision to do so was not based on any animus against the Gr1evor or the Union, nor was its decision unreasonable The eV1dence d1sclosed that it was undertaken for a genuine business purpose and was one that an employer could reasonably have embarked upon in the circumstances, even if the passage of time might disclose that it did not fully ach1eve its objective. For the reaso'ns ~iven, we are not required to assess whether the decision was one that the Board would have taken We are concerned only w1th whether lt was a genuine attempt ( ( ( . :.;~ - 37 - to effect a legitimate business purpose and not a subterfuge to \ atta1n an unp~~mitted objective / / There is a danger 1n regarding every exercise of a management right as being subject to the same degree of review for reasonableness by a board of arb1trat1on The extent to wh1ch management's exercise of its rights will be subject to scrutiny will be dependent on the nature of the right be1ng exercised ,\) \ in managemetit's obligat1ons Failure to recognize the difference to act reasonably 1n different situations can lead to the kind of undue "judicializing " of the "day to day management of the employer's operations" warned against in Mailloux (P Picher) (at pp. 16-17), referred to at p 3 of ~,/ 3715/92 (Charney) Nor can we regard the act10ns of the Employer as conveying to the Union an inteption to return to a fixed shift system with respect to the GrieVor or any other of the employees of the Front I & Centre Cafe. At most, the Grievor was to be returned to her I shift previous pending the Employer satisfying itself that 1tS decision was one that it regarded as being supported by the collective agreement. As matters transpired, the rotating shifts continued and the Grievor was not, in the 1nterim, returned to her "regular" shift. The Ul1ion's representative ind1cated that he did .. nothing because he was waiting for the Employer to h.ve up to what he said he regarded to be a settlement of the matter We have found that there was no settlement and that the Uni on's \ \. \ ( c . <" j - 38 - representative ought to have known that this was the case As we have already noted, our conclusion 1S consistent with the fact that the f1rst notice given to the Employer by the Union that it was relying on a settlement only took place at the commencement of the hearing We find that by introduc1ng rotating shifts 1n the Front & Centre Cafe on November 18th 1992, and, thereafter, continuing with that system, management had put the Un10n on not1ce that 1t was not gOlng to cont1nue to recognize any right in an employee to work a fixed Sh1ft on the basis of her senior1ty. In the c1rcumstances, it was up to the Union to negot1ate a provision for inclus10n into the collective agreement w1th respect to fixed shifts to be assigned on the basis of seniority Cf Re Ivaco Rolling Mills (1992), 28 L.A.C (4d) 372 (Bendel) at p. 377 where reference was made to Re Eurocan Pulp & P~per Co. (19'90) , 14 L.A C (4d) 103 (H1ckl1ng) affirmed June 27, 1991 [27 A C.W s.l .( 3d) 1185, 1 W.A C. 161 03 C.C A ) In the latter case, at p 125, the arb1trator commented on the fact that it would be prudent for a party, when it knows that the b1nding force of a practice has been questioned by the other side, to address it at the bargaining table Reference was made to Victoria Times Colon1st (1984), 17 L.A.C (3d) 284 (Hope) (at p 298) "A decision to remain aloof from the collective bargaining process with respect to such an 1ssue may not be a prudent course." ( ( ,. .. -..\ ~~ - 39 - We have also noted that a practice of allowing employees to choose the shift they will work, based on seniority, at a time when only flxed shifts are scheduled, does not guarantee that the practice wlll contlnue should the employer abandon fixed shlfts J.n favour of rotatlng ones While the practlce may not be resiled from as long as fixed shifts are scheduled, there 1S no basis for regard1ng the representation as extending to an undertaking not to I introduce rotat1ng shifts, especially when the collective agreement allows for thlS -.... This 1S an unfortunate case. Ms James feels that she has been deprived of a valuable right and, 1n the result, whe will be greatly inconvenieced From 1ts perspectlve, the Employer regards the right to implement rotating shifts as being of extreme I, 1mportance to it in running its operations We have heard that ~he parties have in the past by and large been able to resolve most of their difficulties It is clear from the evidence we heard that the relationship between the parties has beneflted from their hav1ng d1splayed a will1ngness to be flexible This willingness has given rise to certain, not very clearly defined, practices 1n relation to an employee's being able to work a preferred fixed shift and in relation to other schedullng matters It 1S hoped that the parties will, in the aftermath of this dec1sion, st111 be able to ma1ntain that which has worked to their mutual advantage 1n the past ( ( \., " .. ",' ~..~ - 40 - \ \ Accordingly, and :for the above reasons, the grievance 1S denied Dated at Toronto this 24th day of February, 1994. ~~~( M Gorsky - Vice Chairperson "I Partially Dissent" (attached) i Browes-Bugden - Member T ~ QI.~~/' F C'" ct - Member { I / l " ( ( ( ) \ I - _.~--_.- ~r'fi, , ,~\( f ~"' - ~'"'" .Ii.... : ~~,.. ,~<~ , ~, ~k,~ GSB #2R:,6/g2 . .,~, ~!;;~ ~~j TEXTr~E PRn~E~~nRg, SEI~V7( f, 'FRAPE':;, HEALTH CARE, P~OFEsslnNAL and TErl1N yr. AL EMPLOlEES JNrrERNJ.TIONAL llHION LorAL 3S'lA (JAMES) AND METRnpnLl'T'AN T/lRnN'pn i~'nNVEN'i'InN rF'N'l'RE rClRPORATION ~, P ARTT AL D T !~ ~1:?N'T' -----~------------~------------------------------------------~---- vJj +-h respect, 1 t Ind t-h7lt r must .)J5Spnr in l'iAtt trom th~ maiorrty L .L i n thjg award Tn partjrulr.lr, I disagr,::..e wi.th the interpretation aiven qchedu~~ A nt the Cn11ective Agrpement, which can bp foun~ on nani=-C:; lR 'And lq nt thie:- award ) r Followinq a careful review of Schpdule A, I find the language to be i clear and un~mbjquuus I can not a g r e e wit h the f n 1 1 o.W 1 n 9 tin a i n 9 s , of the trlajnrity, trol'll pa<]E' lH, which states Schedule A "working t~. schedules Ille.:lns 3 ,. 'I .J II HOt: !'I(1 c-ht.;dll1 '"''''' ~nenmp~ssf'''' t-hp ('lln"f.t',t- <) f: hoth ft'APd '. ~ > ~ ,~ --"... -r--' .':lncl 'Ct ) t " t r 1'1 q ""Ji .. - ':; r- h f:.'fi 1 cO':=: " l.... - - --- I~ f -"". - and goes on to t u r t h l? r s tate .A r tic 1 e A 14 means, J' ~,. : 1'.-. 1 ! II th.'1t t If.re be rotat:inq sh i rt: schedules and that I m;:;y ! ~ article is i ntl:-nded tn qive An employe,,", 16 hours between ! {. :::h l.fts " N I ronrludp the .rn.c'.=i.nj,nq of '::;,-!'tPdule A art icle A 01 to be eYClctly ~s L' is s+-;:;red i n thp "irtic;le " prOVisions ot this Schedule .~Ye for 9~. the 9lJl" f}OSes of -./ lmpi.lt'i ng (Jvprtime II I fnrther conclude the '~,. - mF>;'1n i ng. of Arti{'lE- A 14 sirnp.ly rp("'(lt:Jn i zpo:; ':\ spfocitied period j' ~ betwp,en shitt that i ,3. not qnlikp provisiQI1!'\ found in the Emplllyment s t :l n d.., r ,J s Act {''- 1'hF>YPfny,.:., T r.P:";'lf'('l-tully sl1brnit r hi:\ t- rids f'r<.ne 1 hAS -, j n its Pt 1"'''''.1 i n t e r p r P"" :l t i tl'!1 at tIlE.' /nPAilinq of q("'hl'>dulp .A 1 . ';." 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