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HomeMy WebLinkAbout1994-2520.Union.98-01-23 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 11111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS ~d~ fOtJ 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 H.'LEPHONE/TE:LE:PHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TE:LECOPIE (416) 326-1396 ~ .,,- GSB # 2520/94 . . '] ~"!I'!!l"Tf!:'~~ OPSEU # 95U006 \' - t: ~ :: '''-i_ ..:: ' J c....JI ~ . I IN THE MATTER OF AN ARBITRATION r ! ,.., :;; ~""."'_ Under - enc r r I - 'Let; G:RIEVll\lC:'S _,2TTl.l;M::::rflI":: CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BOARD Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE W Kaplan Vice-Chairperson FOR THE D Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barrister & Solicitor FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING November 7, 1995 2 Introduction This case concerns a January 10, 1995 union grievance alleging a breach of Article 1 9 of the Collective Agreement. The case proceeded to a hearing in Toronto, at which time the parties introduced an agreed statement of fact. 1 The Ministry of the Solicitor General and Correctional Services ('MSGCS') and OPSEU have in place, in several of the Ministry's workplaces, Compressed Work Week Agreements which govern the hours of work for the classified employees specified in those agreements. 2 For the purposes of this matter, the parties agree that the terms of the various Compressed Work Week Agreements can be considered to be the same as those found in the Model Agreement set out in Article 7 7 of the Collective Agreement. 3 On August 11, 1992, the Grievance Settlement Board issued a decision regarding holiday pay under a compressed work week. The decision dealt with the entitlements of Residential Counsellors working at the Ministry of Community and Social Services (MCSS) This decision is referred to as the Simcoe et al decision (GSB 1725/91) Attached as Appendix A is a copy of that decision. 4 MCSS resolved its outstanding holiday pay/compressed work week grievances based on a Memorandum of Settlement. The Memorandum of Settlement was signed by the MCSS and OPSEU on November 25, 1994 and is attached as Appendix B. 5 Subsequent to the Simcoe et al decision, approximately 11 58 holiday pay/compressed work week grievances have been filed within MSGCS. The earliest grievance was filed on December 17, 1992 Attached as Appendix C is a table indicating approximately how many grievances were filed per month on this issue. 6 Prior to December 23, 1994, the MSGCS practice for compensating employees in regards to statutory holidays under a compressed work week was as follows: a) for an employee working on a statutory holiday, the employee received twice his/her hourly rate for all hours worked plus eight (8) or seven and one-quarter (7 1/4) hours, as applicable, as additional payor compensating leave, b) for an employee whose regular day off coincided with a statutory holiday, the employee received compensating leave in the amount of eight (8) or seven and one-quarter (7 1/4) hours, as applicable, and 3 c) for an employee who was scheduled to work on a statutory holiday and did not work, the employee would be considered to have taken the 'stat on the stat' If the shift was greater than the regular number of hours in the employee's schedule (8 or 7 1/4), the employee would be expected to supplement ~he balance of the hours using attendance credits. In some cases, particularly when the Ministry cancelled the employee's shift on the holiday, the employee would be given the' stat on the stat' without any loss of credits. 7 On December 23, 1994, MSGCS issued a policy which changed the Ministry's previous practice in regards to statutory holidays under a compressed work week agreement. The policy was applied retroactively to November 1, 1994 and is attached as Appendix D. The policy applies to all classified Ministry employees working a compressed work week excluding OPP officers. 8. The December 23, 1994 policy provides that employees will be compensated in the following manner in regards to statutory holidays under a compressed work week: a) for an employee working on a statutory holiday, the employee receives twice his/her hourly rate for all hours worked plus eight (8) or seven and one-half (7 1/2) hours, as applicable, as additional payor compensating leave, b) for an employee whose regular day off coincides with a statutory holiday, the employee receives compensating leave in the amount of one day - the value of the day is determined based on the shift which is requested off in the future; and c) for an employee who is scheduled to work on a statutory holiday and for any reason does not work, the employee is considered to have taken the 'stat on the stat' with no loss of credits or pay 9 The parties agree that, with the exception of the last paragraph of Appendix D (fourth bullet point), the policy is consistent with the terms of the Collective Agreement. The last paragraph of Appendix D addresses the paying out of compensating leave credits when they have not been used by an employee. 10 The parties agree that the issue to be determined by the arbitrator are restricted to' a) Is the last paragraph of Appendix D consistent with the terms of the Collective Agreement? and b) What compensation, if any, are grieving employees 4 entitled to for the period prior to the November 1, 1994 implementation of Appendix O? 11 The parties agree that, once the above issues have been determined, the parties will attempt to apply them to outstanding statutory holiday/compressed work week grievances. The parties agree that the Board will remain seized in regards to all these outstanding grievances in the event that the parties are unable to agree on the application of the Board's decision. 1 2 The parties acknowledge that the description of the prior MSGCS practice set out in paragraph 6 may not be representative of all workplaces within the Ministry Where it is determined that that a particular workplace had a different practice in place and this affects a particular grievor's entitlements, the parties shall attempt to address this between themselves. In the event that they are unable to resolve these issues, either party may refer the matter to the Board and the Board will remain sized pursuant to the terms of paragraph 11 1 3 The parties agree that this Statement of Agreed Facts does not limit either party' 5 ability to call further evidence or make further submissions on the day of hearing. The parties agree that further evidence will not be used to refute the facts agreed to in this document. As the above makes clear, two issues were presented to the Board 1) Is the last paragraph of Appendix D consistent with the terms of the Collective Agreement? and 2) What compensation, if any, are grieving employees entitled to for the period prior to the November 1, 1994 implementation of Appendix D? The last paragraph of Appendix D provides "notwithstanding the above-noted, when a classified employee terminates his/her employment or elects to receive payment pursuant to Article 19 6 of the Collective Agreement or Section K 12 2c of the Salary Administration Manual, accumulated compensating leave will be paid-out on the same basis as if it was earned on a non-compressed work week shift schedule (ie on the basis of 7 25 or 8 00 hours per holiday, as applicable) - 5 Union Submissions Issue One Union counsel began his submissions on this point by observing that employees working on a compressed schedule generally work a mix of 8 hour, 1 0 hour and 1 2 hour shifts in order to make up the compressed work week. The dispute between the parties concerns the credit an employee should receive where he or she terminates his or her employment or elects to receive payment for a shift pursuant to the terms of Article 1 9 6 The employer's practice is to pay these persons an ordinary day's wages of either 7 25 hours or 8 hours The union takes the position that the individual should be paid what he or she would have actually earned on the day in question In the union's submission, Article 19 6 could not be more clear The provision stated that accumulated compensating leave shall be paid "at the rate it was earned" That phrase, the union argued, did not refer to the day that the leave was cashed out, but referred to the day it was actually earned And if it was actually earned on what would have been a twelve-hour shift, that is the compensation that should be received Issue Two Union counsel noted that the Ministry changed its practices as of November 1, 1994 However, the Simcoe case was decided in August 1992, and it was brought to the attention of the Ministry beginning on December 17, 1992 when the first of a large number of grievances were filed taking issue with Ministry practices and explicitly referring to the GSB decision declaring, in effect, that the status quo was contrary to the Collective Agreement. Fifty-two gnevances were filed In December 1992, three hundred and 6 twenty-five were filed in January 1993, and a total of eight hundred and ninety-six were filed in that calender year, All together eleven hundred and fifty-eight grievances were filed And, in the union's view, all of these grievances, taking issue with the Ministry's practice, should receive compensation in accordance with the proper interpretation of the Collective Agreement retroactive to twenty days prior to the issuing of the Simcoe award There were, in the union's view, a number of reasons in support of choosing the Simcoe award as establishing the appropriate retroactive date First, counsel noted, there were a large number of individual and union grievances - almost twelve hundred - and it made little sense, in the union's submission, to engage in what would undoubtedly be a lengthy inquiry as to the circumstances under which each of these grievances were filed, an inquiry counsel suggested which would be necessary given the Board's well-established jurisprudence interpreting the time limit provisions of the Collective Agreement concerning when grievances may, depending on the subjective knowledge of grievors, actually be filed It made no sense to consider the circumstances underlying each of the outstanding grievances What made sense was using the date the employer first became aware of the breach, and that date was when the GSB issued the Simcoe award Considered in a practical context, a simple and straightforward benchmark, applying to all the grievors had a lot, the union argued, to commend itself Counsel noted that the Simcoe award was not judicially reviewed, indeed, It was accepted by Management Board and adopted by the Ministry of the Solicitor General and Correctional Services Its essential correctness was not in dispute - all that was in issue was the retroactive date for the implementation of its terms ~ 7 Counsel also observed that applying a uniform date in circumstances of this kind had been adopted by the Board in other cases. While the date of the Simcoe award was the union's preferred retroactive date, there were a number of alternatives One of these alternatives was the retroactive date provided for in the Memorandum of Settlement reached between the Ministry of Community and Social Services and OPSEU September 28, 1992 A further possible retroactive date, but the less preferable of all those suggested by the union, was the date on which the Ministry of the Solicitor General and Correctional Services was first alerted to the Simcoe award by the filing of grievances beginning on December 17, 1992 By that date, at the very latest, the Ministry knew that its practices were under attack, and was further aware that the GSB had ruled such practices a violation of the Collective Agreement. Employer Submissions Issue One It was important, in Mr Mously's view, to approach this issue with both practical and common sense. He noted that the compressed work week schedule is extended over a two-week period and that it was extremely difficult, if not impossible, to determine exactly what shift an employee would have worked on a particular day when that employee was not even scheduled for a shift. What was important to point out was that employees under the policy were given the credit for one day, and that credit was placed in the bank where the employee could exchange it for a twelve hour shift as readily as for an eight hour shift. No matter what day an employee takes off, he or she receives a day's pay The point, very simply, was that it was a day's credit that when into the bank, not a specific number of hours. Accordingly, the value of the day off is determined when it is taken not 8 '" when it is placed in the bank. The employer took the position that compressed work week arrangements were not entered into in order to provide employees with additional earning benefits in terms of the number of hours of pay that were received The number of hours worked, and the compensation obtained should, Mr Mously argued, be the same whether a regular forty hour week was worked, or whether the hours were worked in a compressed period It was also important, in management's view, to put the Simcoe case in proper context. That case corrected a situation where employees were losing pay because of the then prevailing interpretation of the Collective Agreement. There was no loss of pay present in this case, indeed, what there might have been, given the administrative practices of allowing employees to take a day off when they had a day banked was the prospect of overcompensation, particularly in those circumstances when the employee used a day's credit in the bank to take off a twelve hour day with full pay There was no evidence in any event, that an employee who cashed out at the end of the year ended up with less annual pay In addition, in the employer's submission, the provision did not talk about the daily rate of pay; it spoke about a rate, and that rate had to be the hourly rate, and this interpretation was consistent with Article 1 9 1 On a forty hour schedule, a day was eight hours long, and this was, therefore, the proper number of hours for the employer to pay should the day not be taken, but cashed out Certainly, there was nothing in this practice, the employer argued, that contravened the Collective Agreement. Accordingly, Mr Mously urged me to issue a declaration that the last paragraph of Appendix 0 was not contrary to the Collective Agreement. 9 Issue Two In the employer's submission, there was absolutely no basis in this case to depart from the usual twenty day rule How, Mr Mously asked, could it possibly be fair to attribute liability to the Ministry before it was even aware of a Collective Agreement breach? The answer was obvious, and the employer took the position that it would be unjustifiable, in this case, to depart from the usual practice, and Mr Mously referred to a number of authontles and principles in support of this submission In one of these cases, Hammond/Maier 2426/90 (Finley), the Board, although with no reasons, determined that the retroactivity date should not be the date of the issue of a GSB decision but should instead be the date upon which the Divisional Court issued its decision in an application for judicial review of that GSB decision Moreover, applying the principles in the Jansson et al 1888/89 (Gorsky) award, Mr Mously argued that there was no reason to find that the grievors should get extended retroactivity because of a grievance and a decision that arose out of a different Ministry This was most emphatically not a case where employees working side by side were obtaining differential and inequitable treatment, rather, it was, in the employer's submission just that sort of case where the 20 day retroactivity rule should be applied It was also noteworthy that most of the grievances that were filed in the instant case were filed long after the Simcoe decision was released They could hardly, therefore, be described as a prompt response to that case - one, which in any event, was restricted to a particular set of facts in a particular Ministry Accordingly, and for the foregoing reasons, Mr Mously asked that I issue a declaration stating the usual retroactivity rules applied 10 Union Reply In reply, union counsel pointed out that while it was Ministry practice to credit employees with days not hours, that practice was inconsistent wIth the Simcoe awa rd Moreover, union counsel argued that it was possible to determine how many hours an employee would have worked on a day he or she was not scheduled to work by looking at the schedule and figuring out how many hours the employee would have worked on that day had he or she been scheduled On some occasions this analysis would lead to a finding that the employee would have worked eight hours, on other occasions it would lead to a finding that the employee would have worked twelve hours. What was important, in the union's submission, was that the employee be credited for the exact number of hours that would have been worked, and anything less could result in an employee losing pay - the exact result the Simcoe decision was intended to guard against. Decision Issue One Having carefully considered the agreed facts and submissions of the parties, I cannot find any violation of the Collective Agreement in the policy set out in the last paragraph of Appendix 0 For a violation to exist there would have to be some evidence, as in the SImcoe award, that the practice complained of was resulting in a loss of income In Simcoe that evidence was stark. In this case, the evidence, if anything, suggests that the practice is to the overall benefit of the union and its members Certainly, applying the Simcoe principles, there is no evidence of detriment, and such evidence would be necessary in order to establish a breach 11 In addition, a readmg of the relevant provisions does not support the union's claim What Article 19 4 provides is that where a holiday coincides with an employee's scheduled day off and he or she does not work on that day, the employee shall be entitled to receive another day off The provision does not require the employer to engage in the elaborate and arguably impossible exercise of figuring out what day and for how many hours the individual would have worked if he or she was scheduled, and then put that exact number of hours in the bank. The fact of the matter is that the provision refers to scheduled days off There are no hours on scheduled days off Accordingly, it is completely consistent with the provisions of the Collective Agreement to simply put the day in the bank And it is a generous interpretation of the Collective Agreement to allow employees to use that day for any other day on a compressed work week shift. It should also be noted that Articles 19 2 incorporates the concept of a day, being either 7 1/4 hours or 8 hours, and it is this part of Article 19, along with 1 9 4, not Article 1 9 1 that refers to hours, that are referenced in 1 9 6 The reference in 19 6 to the "rate it was earned" is not a reference, I find to the number of hours but is simply a reference to the employee's hourly rate For the foregoing reasons, I find that the final paragraph of Appendix 0 is m accordance with the Collective Agreement and so declare Issue Two The matter to be determined is the proper retroactivity date. In the ordinary course, the Board uniformly imposes a retroactivity date of twenty days prior to the filing of the grievance The development and rationale of this rule are well-known among the parties. The parties are also aware, however, that the Board has, from time to time, varied from the uniform -- 12 application of this rule where it is just and appropriate to do so, and for the following reasons, I find that this is such a case A number of arguments were advanced by the parties for and against using the Simcoe case as the benchmark for determining the retroactive date for the grievances now before the Board Without undertaking a detailed analysis of the differing positions of the parties, it seems to me, on the facts of this particular case, that retroactivity should not begin until this Ministry received a grievance alleging a breach and referencing the GSB's decision in the Simcoe case Once the first grievance was filed formally bringing to the Ministry's attention an allegation of a violation of the Collective Agreement along with a decision of the Board findmg that the exact same practice in another Ministry was contrary to the Collective Agreement - and it was an agreed fact between the parties that this Ministry was notified of the Simcoe case in one of the earliest December grievances that was filed - the employer acted at its own peril by not expeditiously addressing the issue This is not a case of the Ministry simply receiving notification of an alleged breach of the Collective Agreement through the filing of one or more grievances. If it were, the result in this award would be much different, and would have, almost certainly, resulted in the application of the usual retroactivity rule Rather, this is a case of the Ministry receiving numerous grievances, many of which referenced a decision of this Board stating that a practice that existed in another Ministry, in all material respects identical to a practice in this Ministry, was contrary to the Collective Agreement. Another panel of this Board made that finding, and decisions of this Board are final until overruled Not only was this decision 13 not taken to judicial review, it was eventually implemented in full The Ministry can hardly, in these circumstances, claim to be taken by surprise Nor can it state that it was awaiting a finding of this Board This Board had made a finding, and that finding was communicated to it. The date of communication is, of course, important. The union would like retroactivity to the date of the issuance of the Simcoe decision In Hammond/Maier. supra. the Board rejected such a request in circumstances that were arguably similar, at least to some extent. Unfortunately, in rendering its decision the Board failed to provide any reasons for it, or for choosing as an alternative retroactivity date the conclusion of a judicial review The award in Hammond/Maier is hardly helpful insofar as general principles are concerned Nevertheless, I also find the issuance of a GSB award is not necessarily sufficient, at least it is not in this case (being somewhat sensitive to the size and diverse operations of government), to bind every Ministry insofar as a retroactivity date is concerned should other grievances alleging the same violation of the Collective Agreement subsequently be filed referencing one of the Board's awards Obviously, there can be no hard and fast rule What there must be is a measure of common sense applied to the facts of particular cases In that regard, the Memorandum of Settlement between the MCSS and OPSEU providing for a retroactive date of September 28, 1992 can hardly be held to bind the Ministry of the Solicitor General and Correctional Services It is noteworthy that it appears as if it took the parties until November 1994, long after the release of the Simcoe award, to come to an agreement on how best to implement its terms In these circumstances, it would hardly be appropnate to attribute this Ministry with that same retroactIve date The Important date in the instant case, in my view, is the date when a grievance 14 was first filed bringing both the alleged violation of the Collective Agreement to the attention of the Ministry along with the Simcoe award Quite clearly, there is nothing about the Simcoe award that states it applies to one workplace Indeed, any fair reading of that decision indicates that it applies to a practice, and it was one that has been commonly conceded to be the exact same practice brought into issue in this case The fact that the practice was ultimately changed, and brought into exact line with the requirements of the Simcoe award merely serves to illustrate the point that the Ministry eventually realized that it had no choice but to comply, notwithstanding the government's effort in Chew 3440/92 (Barrett) to secure a different result. And when it finally reached that realization, it should have made compliance retroactive to twenty days before the date on which the violation and the Board's decision was first brought to its attention, and I so declare A t the request of the parties, I remain seized with respect to the implementation of this award DATED at Toronto thiS 27th day of November 1995 I / /..- ~--- --.,..-----..----------- William Kaplan Vice-Chairperson ONTARIO EMPLOytS DE LA COUFlONNE CROWN EMPLOYEES DE L'ONTARIO _ _ GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41tJ) 32tJ-13SltJ GSB # 2520/94 OPSEU # 95U006 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THEGIDEVANCESETTLEMENTBOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown m Right of Ontario (Mimstry of the SoliCItor General and Correctional Services) Employer BEFORE W Kaplan Vice-ChaIr FOR THE D Wright UNION Counsel Ryder Wright Blair & Doyle Barristers & Solicitors FOR THE A. Gulbmski EMPLOYER Staff RelatIons Officer Ministry of the Solicitor General & Correctional ServIces HEARING January 19, 1998 2 Introduction and Decision On Apn116, 1997, the Board issued an award dealing, generally stated, with holiday pay and ment pay By and large, the parties have been able to implement that award without difficulty However, a dispute arose concerning two very specific issues, and that dispute proceeded to a heanng in Toronto With respect to the first issue in dispute, a difficulty has arisen with respect to the calculation of holiday pay for non-grievors It is impossible to calculate exact amounts owing for certain employees because the records were, in accordance with usual retention schedules, long-ago destroyed The union takes the position that the affected employees should not be penalized because the records, no longer exist and should, therefore, be given the maximum entitlement. For its part, the employer takes the position that records going back to 1992, when the subject matter of these proceedings first began, were retained for grievors and that the only sensible way to calculate the entitlement for non-grievors, in the absence of any records, is to confer upon them the average entitlement as determined ministry-wide The second issue in dispute concerns the implementation of merit pay and certain consequences which arose as a result It should be noted that the matters underlying this dispute date back many years It is quite understandable in these circumstances, turning to the first issue, that scheduling records would no longer exist for employees who did not exercise their nght to gneve in 1992 or 1993 Accordingly, with respect to the first matter in dispute, I direct that non-grievors 3 without payroll records In both the Ministry of the Solicitor General and Correctional Services, and the Ontano Provincial Police shall, within thirty days of the date of thIs award, receive compensation equal to 22 hours pay at their regular rate With respect to the second matter in dispute, the Ministry is directed to undo the retroactive underfill and to setoff any Increase in compensation arising out of having done so At the request of the parties, I remain seized with respect to the implementation of this award DATED at Toronto this 23rd day of January 1998 (1/(___ William Kaplan Vice-Chair