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HomeMy WebLinkAbout1993-0720.Gosal.94-11-15 /-' ( (. " "...- -:;; ONTARIO EMPLOYES DE LA COURONNE '.c.:.. II CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE. (416) 326-1388, 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELEECOPIE (416) 326-1396 ~ 720/93, 814/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES CO~LECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD I BETWEEN OPSEU (Gosal et al) Grievor - and - The Crown in Right of ontario ! (Ministry of Correctional Services) Employer BEFORE: N O.issanayake Vice-Chairperson I. Thomson Member \ o. Clark Member \ M. McFadden FOR THE I UNION counsel Koski & Minsky Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services \ r HEARING July 11, 1994 October 13, 1994 I . -- '7 ~",.. ~:. ...;,: ':'J"'" "'-r-"':-;-'J:';'-.: ,- r n- 2 , DECISION File no 0720/93 is a group of twelve individual .- grievances filed by the fOllowing employees Bourgeoi~, U Carlson, John De Souza, Lionel Dunn, Robert Forde, John Gosa1, Jha1man Keith, Chris Lea, Ernest Loparco, Antonio Mayes, Sam Narduci, Vito Palmer-Smith, Stephen ,) Although worded somewhat differently these grievors have the same allegation that the employer has violated the collective agreement by changing th'e "on call" system for week-end and after hours emergency work The Board wa,s advised that the Loparco and Mayes grievances had been withdrawn, leaving ten outstanding grievances \ ? File 0814/93 is a grievance filed on behalf of the same \ ten grievors, wherein it is alleged that the newly implemented "on-call" system results in ~xposure of the employees to undue I ) health and safety risks in violation of article 18 1 Through these grievances, the union challenges the employer's decision to change the existing "on-call" system on alternate grounds First, it is the union's position that the ~ employer is estopped from implementing that change Second, L . . I ~ ! , I I '.'\' I / \ 3 ) it is submitted that the new system results in unfair and _ ._ inequitable distribution of overtime contrary to article 13 2 1. Thirdly, the union takes the position that article 18.~ is contravened because the employees are exposed to undue health and safety risks, when the Maintenance Coordinator, Mr Leslie Nero performs emergency work himself, because he does \ not possess the necessary skill and ability to do the work safely. At the commencement of the hearing, the parties agreed to obtain a ruling on the estoppel issue before dealing with the - \ alternate grounds Based on the evidence which was not disputed in any material way, we ~ind the following facts until 1978, ~, emergency work that became necessary at the Metropolitan Toronto West Detention Centre, after regular hours or on week- ends was handled exclusively by the Maintenance Coordinator, \ a member of Management sometime in 1978 a new system was i introduced by the employer for the performance of this emergency work. All employees in the Maintenance Dept were included in an "on-call" rotation wherein each week at the end of the Friday shift, one employee was issued a pager, which he kept ,in his possession until it was handed to the next employee on the rotation the following Friday As a result of the issuance of the pager, the employee was put on "on-call" ) . . I ,. 4 status for the duration of the week and became entitled to approximate~y 125 hours of "on-call" pay pursuant to article " I -.- 16 The evidence is that if emergency work became necessary during off hours or on a week-end, the institution paged the "on-call" employee After obtaining the information about the problem, the employee ma~e an assessment as to what action was required. This could range from not doing anything until the next regular shift, to attending at the institute immediately to fix the problem Of course, if the employee attends during off hours, he becomes entitled to overtime pay in accordance with article 13. The evidence further discloses that on some weeks the "on-call" employee may have no requests for emergency wo;rk Other weeks, there may be as many as ten or twelve calls. The Maintenance Dept. consists of employees with different trade skills. The classifications in the department ,. include Maintenance Mechanics, Maintenance Electrician, ) Plumber, Welder and Groundskeeper. At the relevant time there were ten emplo~ees in the department. Due to the rotation , system, on any given week the "on-call" employee may corne from any of the above classifjcations ( . . ... .,.... ,.,.' .-.- ./ , \ 5 When emergency work becomes necessary, the "on-call" employee attends the site if he decides that it cannot wait until the next regular shift There', he would effect the ) repair if that was within his skill and ability However, he may not always be able to do that. He may find upon inspection that performance of the work requires a different skill than what he possesses Then he makes the decision to call in an employee with the necessary skills For example, if the "on-call" employee for the week was a plumber, and the repair requires electrical work, the plumber would call-in an electrician to effect the repair In the alternative, the plumber may conclude that none of the Maintenance Dept I employees have the required skills to do the repair He \ would then call in an outside contractor to do the work This rotating "on-call" system was still in effect when Mr Leslie Nero became the Maintenance Coordinator on September 24, 1992 within a few months he came to the conclusion that the existing "on-call" rotation system had to go He testified as to the reasons, that he found the system to be costly, ineff icient and open to abuse. During testimony \ he stated that his primary concern was that under the existing system the employees were making significant management decisions The employee makes the decision a~ to what action is required in an emergency He decides whether or ~ot he \ ought to do the work himself He decides which employee to . ) ) .. 6 assign if he decides not to do the work himself He can I decide to commit funds by calling in outside contractors By making these decisions, the employee in effect decides what overtime work will be done and who will be assigned to do that ( overtime Mr Nero concluded that management and not bargaining unit employees should have control -over these decisions. Mr Nero testif ied that he was also concerned about costs. Every week an employee was paid approximately 125 hours of "on-call" pay regardless of the amount of emergency work that becomes necessary When a problem arises there may be a duplication of overtime pay. When the "on- call" employee attends and decides to call in a different employee, both employees become entitled to be paid Having ~ecided to replace the existirg system for these reasons, Mr. Nero sought suggestions from the employees Two I proposals were submitted by the employees, both of which --- involved the continuation of the "on-call" rotation " Therefore Mr. Nero rejected them and ultimately implemented \ { the current new system effective March 1, 1993. Under the new system, no employee is designated to be on call. Mr Nero retains the pager at all times. Thus he receives all calls about problems that may come up in the institution during off hours and week-ends He decides what action would be taken. An overtime availability sheet is . . " \ 7 . posted each week at the workplace Empl?yee-s sign up indicating their interest in doing emergency overtime for each day of the week If Mr. Nero decides that emergency work has \ to be performed without waiting for the next scheduled shift he calls in on employee with the required skills and who has signed up for the particular day on the overtime availability sheet. If more than one employee with the skills to perform the particular work had signed up, Mr. Nero would call-in the employee with the least amount of overtime to date I.f the is overtime, \ I employee not reached or refuses the offer of there are no repercussions. If an employee with the required skills is not available, Mr Nero decides whether to call-in an outside contractor. Mr Nero testified that on one occasion he went in an effected a repair himself, when the employee he had called in could not fix the problem Mr Nero testified that this new system rectified both of \ his concerns. Under this system, management made the decisions as to what overtime work is to be performed and who should be assigned that work Management also made the " decision whether or not to call in outside contractors Also, urmecessary costs resulting from the duplication of i overtime pay as well as by the on-going "on-call" payments were eliminated ) ! . . \ I ,8 The employer's position on the estoppel issue i~ two- fold First, it is submitted by counsel that since the I employer conduct impugned relates to issues'of "assignment" and "work methods and procedures", it was a matter strictly falling within exclusive management functions reserved for the I employer by virtue of section 18 (1) of the Crown Emplovees Collective Bargaining Act Relying on Re Brammel,l, 1584/91 (Kirkwood) counsel submits that in the absence of any right in \ the collective ,agreement relating to these matters, ~ere exercise of the management functions cannot give rise to an estoppel In the alternative, employer counsel submits that Ii in any event the facts of the case do not give rise to an estoppel -, To dispose of this grievance, the Board does not have to determine whether, as a matter of law, an estoppel may arise as a result of the employer's exercise of its management rights This is because, we find that the facts before us do not satisfy the requirements for the application of estoppel v <- The union submits that the criteria for estoppel have been met Counsel submitted that the practice from 1978 to March 1, 1993 of assigning emergency overtime work on the basis of a rotational "on-call" system itself constitutes a "representation" for purposes of estoppel He contends that ....... ,\ as a result of that practice, employees have reasonably come to the conclusion that ~hey could expect additional income, at . ~ 9 least to the extent of approximately 125 hours of "on-call" I pay every 10 weeks. The "detrimental reliancell, according to , counsel, was that in several rounds of negotiations the union was denied the opportunity to "codify" the existing system and the benefits that accrued to the employees as a result of it. In addition, counsel submitted that the practice of assigning emergency work on the basis of a rotating lion-call" system constituted a "local agreement" entered into by the parties tacitly and that it is enforceable as such, by virtue of article 35 The Board sees no merit in the union's position The basic flaw is the premise that, when the employer adopts a practice in the course of exercising its exclusive management functionJ, there is an implied ~epresentation to continue that practice, or to not adopt a different practice The management right to a~sign work and to implement work methods ( and procedures, necessarily includes the right to change or replace the assignments, methods and pr~cedures. The fact I that these r~ghts are exercised in a particular kanner does not constitute a representation by the employer that it was waiving the right to change its manner of exercise. To constitute such a waiver, there must be some conduct by the employer which \can be seen as a direct or implied undertaking to continue the existing practice The mere adherence to a particular practice, even for a long period of time, by . -! 10 I I itself, does nbt reasonably give rise to an implied undertaking that the practice would not be changed in the future If we were to hold otherwise, for all practical purposes management would not be able to change any practice "- or procedure which had been implemented for any length of ) time That would mak~ management impossible In the case at hand, there is no evidence suggesting that the employer made any representation whatsoever, either expressed or implied, that it would not exercise its management rights under s-ection 18 (1) to change the "on-call" ( procedure Just as much as it had the right to imp1~ment the rotation system in 1978 by changing the system that existed at the time, it had the right to chapge that system in 1993 in the exercise of its legitimate management ~ights The union's argument based on article 35 has even less merit That provision contemplates negotiations between individual ministries and the union. That provision simply has no application to the facts in hand We do not see how the rotating "on-call" system could constitute a "local agreement" as the union claims, when the evidence clearly establishes that the rotation system was implemented unilaterally by the employer in the exercise of its management functions. There was no negotiation and no agreement ~ ~ . .! . 11 J For the foregoing reasons, we find that estoppel does not arise in this case, and that aspect of the grievance fails In view of this finding, we need not decide the legal issue raised by the employer as to whethe~ an estoppel could have \ arisen even if all of the criteria were met, where the employer conduct related to a pure exercise of management I in rights, which did not relate to any employee right the collective agreement. That leaves for determination, the union's alternate I arguments based on articles 13 2 1 and 18 1 of the collective agreement The Board shall reconvene on January 31, 1995 to deal with thqse issues Dated this 15~h day of November, 1994 at Hamilton, ontario '", I -'~~~7~ ~~/ ~c- D~ya&' - vice-Chairperson ~ ' 'Ii" \ ~ ~ oM~-L .J I Thomson Member -d/ ~~ D Clark Member ( .