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HomeMy WebLinkAbout1997-1717TEFOGLOU98_11_02 ONTARIO EMPLOYES DE LA COURONNE , CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB #1717/97 OPSEU 97G147 . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THEGRlliVANCESETTLEMffiNTBOARD BETWEEN Ontano PublIc ServIce Employees Uruon (Nick Tefoglou) Grievor - and - The Crown m Right of Ontano (Mirustry of the SolICItor General and CorrectIOnal ServIces) Employer BEFORE RandI H, Abn:.msky Vice-Chair FOR THE Ed Holmes GRIEVOR Counsel Ryder Wnght Blair & Doyle Bamsters & SolICItors FOR THE Laura Williams EMPLOYER StaffRelattons Officer Mirustry of the SolICItor General & CorrectIOnal ServIces HEARING October 1, 1998 , AWARD At Issue IS whether the Employer Violated ArtIcle 22 6 3 of the collectIve agreement when It derued the request of the gnevor, Nick Tefoglou, for paid tIme off to attend a Stage 2 gnevance heanng on August 11, 1997 Under ArtIcle 22 6 2, an employee who has a gnevance and IS reqUired to attend a Stage One or Stage Two meetmg "shall be gIven time off With no loss of pay and With no loss of credIts to attend such meetmgs." ArtIcle 2263 states that "ArtIcle 226.2 shall also apply to the Uruon Steward who IS authonzed to represent the gnevor " Facts The pertment facts were agreed to by the partIes, as follows 1 Mr Walls IS a CorrectIOnal Officer at WhItby Jail. 2 Mr Walls suffers from asthma as a result of mdoor air pollutants mcludmg smoke and second hand smoke Smce the rrud-nmetIes, Mr Walls has been requestmg accommodatIon for hIs condItIOn. Mr Tefoglou, m hIs role as Local PresIdent ofWlutby Jail, has been one of the uruon representatIves assIstmg Mr Walls wIth hIs requests for accommodatIon, 3 On June 3, 1997, Mr Walls receIved a letter from Mr Gorman, the then supenntendent of Wlutby Jail, mfonrung rum that he was bemg temporarily aSSIgned for a SIX month perIod to BrookSIde Youth Centre m Coburg, Ontano Mr Walls was mformed that the assIgnment would satIsfy hIs accommodatIon needs because Brookside IS a smoke-free work enVironment. 4 The accommodatiOn arrangement mcluded that Mr Walls would be reImbursed for hIs mileage and would be entItled to travel tIme for travel to and from BrooksIde Youth Centre Mileage and travel time mcurred to and from BrooksIde was paid by the Wlutby Jail. On Monday, June 9, 1997, Mr Walls commenced hIs SIX month temporary asSIgnment at BrooksIde Youth Centre 2 I 5 On July 3, 1997, Mr Walls verbally complamed to hIs supervIsor, Mr Jim Flesche, an operatIOnal Manager at BrooksIde, that the employer had mappropnately assIgned hIm to BrooksIde 6 On July 4, 1997, Mr Walls lrutIated Stage One of the gnevance procedure at BrooksIde when he filed a gnevance clalImng the Employer Violated the collectIve agreement and the OHRC when they "unilaterally, and mappropnately assIgned me to the pOSItIOn of a CorrectIOnal Officer 2, Youth ServIces Officer, at BrookSIde Youth Centre. " The gnevance was subrmtted to Mr Flesche at BrookSIde Mr Flesche derued Mr Walls' gnevance m a letter dated July 8, 1997 7 On August 8, 1997, Mr Walls was mformed that a Stage Two meetmg regardmg hIs gnevance would be held on Monday August 11, 1997 at BrookSIde Youth Centre Mr Walls contacted Mr Tefoglou m order to request that Mr Tefoglou represent hIm at thIs Stage Two meetmg, 8 Mr Tefoglou was scheduled to work on August 11, 1997 On August 10, 1997, Mr TefogIou wrote to OM16 Polya requestmg leave With pay to attend the Stage Two meetmg as Mr Walls' uruon representatIve 9 On August 11, 1997, OM16 Mamson derued Mr Tefoglou's request on the basls that Mr Walls was "reassIgned to BrooksIde and can be represent[ed] by that local." 10 The facts glVing nse to hIs gnevance dated July 4, 1997, mvolved the WhItby Jail Supenntendent's deCISiOn to temporarily aSSIgn hIm to the BrookSIde Youth Centre, Pursuant to artIcle 2264 of the collectIve agreement, Mr Tefoglou IS authonzed to represent employees of the WhItby Jail. Mr TefogIou IS not on the lIst ofUruon Stewards authonzed to represent employees located at BrookSIde Youth Centre, pursuant to artIcle 2264 11 Mr Walls filed hIs gnevance dunng the time he was temporarily assIgned to BrookSIde Youth Centre m Coburg. While located at BrookSIde, Mr Walls appeared on the WhItby Jail's seruonty lIst. Mr Walls dId not retam or perform any of hIs Job functions at WhItby JaIl. BrookSIde Youth Centre was responsible for adrmrustenng Issues relatmg to Mr Walls' work performance. ThIs mcluded lssues relatmg to Mr Walls' attendance while at BrookSIde whIch was handled by Mr D LundIe, Supenntendent of BrookSIde. It IS not the WhItby Jail's practIce to remove temporarily asslgned employees from ItS seruorIty lIst. 12 On Monday, August 11, 1997, Mr Walls attended the Supenntendent's office at Brookslde where Ms R. Akey, Human Resources Consultant, and Mr D LundIe were m attendance to commence the second stage meetmg. Mr Walls refused to partIclpate m the second stage meetmg as a result of the derual to allow Mr Tefoglou tIme off to attend. The Employer representatIves offered Mr Walls time to consult With a local uruon 3 representatIve who was available and on duty at BrooksIde so that the meetmg could be held. Mr Walls contmued to refuse to partIcIpate and the meetmg was cancelled. 13 The Stage Two meetmg was rescheduled for September 12, 1997 Mr Tefoglou dId attend the Stage Two as Mr Walls' representatIve on that date Mr Tefoglou was not scheduled to work at Wlutby Jail on thIs date. The Employer desIgnee dId not obJect to Mr T efoglou' s attendance or ability to represent Mr Walls at the meetmg, 14 Mr TefogIou filed a gnevance dated August 22, 1997, claIrmng that the Employer had VIolated ArtIcles 22 6 3 and 3,2 of the collectIve agreement and SectIon 79 of the OLRA, by denymg hIs nght as a Drnon RepresentatIve to attend and represent Mr Walls at hIs Stage Two meetmg. 15 If Mr T efoglou' s request to tIme had been granted he would have been given tIme off With no loss of pay and With no loss of credIts to attend pursuant to the collectIve agreement. Dunng the heanng, the Uruon elected to proceed only With the alleged ViOlatiOn of ArtIcle 2263 In addItiOn, the follOWing collectIve agreement proVIsIons are relevant to thIs matter ARTICLE 22-GRIEVANCEPROCEDURE 22 1 It IS the mtent of thIs Agreement to adJust as qUIckly as possible any complaInts or dIfferences between the partIes ansmg from the mterpretatIon, applIcatiOn, adrmrustratiOn or alleged contraventIon of thIs Agreement, mcludmg any questIOns as to whether a matter IS arbitrable 2221 It IS the mutual desIre of the partIes that complaInts of employees be adjusted as qUickly as possible and It IS understood that If any employee has a complaInt, the employee shall dISCUSS It With the employee's nnmedIate supervIsor WIthm thIrty (30) days after the CIrcumstances gIVIng nse to the complaInt have occurred or have come or ought reasonably to have come to the attentIon of the employee m order to give the ImmedIate supervIsor an opporturuty of adJustmg the complaInt. "- 4 STAGE ONE 2231 The employee may file a gnevance m wntmg With hIs or her supervIsor The supervIsor shall gtve the gnevor hIs or her decIsIon m wntmg WithIn seven (7) days of the subrmsslOn of the gnevance STAGE TWO 2232 If the gnevance IS not resolved under Stage One, the employee may subrmt the gnevance to the Deputy Miruster or hIs or her desIgnee WIthm seven (7) days of the date that he or she receIved the decIsIon under Stage One 2233 The Deputy Miruster or hIs or her desIgnee shall hold a meetmg With the employee WithIn fifteen (15) days of the receIpt of the gnevance and shall give the gnevor hIs or decIsIon m wntmg WithIn seven (7) days of the meetmg, 225 The employee, at hIs or her OptIOn, may be accomparued and represented by an employee representatIve at each stage of the gnevance procedure 2262 An employee who has a gnevance and IS requIred to attend meetmgs at Stage One and Two of the gnevance procedure shall be gIven time off With no loss of pay and With no loss of credIts to attend such meetmgs 2263 ArtIcle 226.2 shall also apply to the Uruon Steward who IS authonzed to represent the gnevor 2264 The Uruon shall adVIse the DIrectors of Human Resources of the affected rmrustnes With copIes to the DIrector, Negotiations Secretanat, of the Uruon Stewards together With the areas they are authonzed to represent, whIch lIst shall be updated at least every SIX (6) months. Arguments of the Parties The Uruon contends that under the uruque CIrcumstances of thIs case Mr Tefoglou ( should have been proVIded leave to represent Mr Walls at hIs Stage Two meetmg on \, August 11, 1997 and that the Mirustry's derual of that leave VIolated ArtIcle 22 6 3 It 5 asserts that Mr Walls, for the purpose onus July 4, 1997 gnevance, should be consIdered an employee ofWlutby Jail. It pomts out that the gnevance challenges the declSlon of the Wlutby Supenntendent to reassIgn hIm to BrooksIde Youth Centre to accommodate hIs senSItIVity to smoke, an Issue With whIch Mr Tefoglou was thoroughly familIar Accordmgly, It asserts that for the Stage Two meetmg to have been a meamngful . dIScussIon and to resolve the dIspute as qUickly as possible, as reqUired by ArtIcle 22 1 and 22.2 1, It was necessary that Mr Tefoglou attend the Stage Two meetmg WIth Mr Walls, rather than a local steward from BrookSIde who had no knowledge of the hIstory or underlymg Issues m thIs matter In ItS View, Mr Walls' gnevance had nothIng to do With BrookSIde Youth Centre and contends that the role of the uruon steward at Stage Two meetmgs IS more than Just a "warm body" and that stewards are not always mterchangeable. The Umon further pomts out that Mr Walls was only temporarily assIgned to BrookSIde and remamed on the Wlutby Jail's seruonty lIst and was paid by Wlutby Jail for hIs mileage and travel tIme In support of ItS pOSItIOn, the Druon CItes to In Re Nabi and Ministry of Community and Social Services (1977), GSB No 114/76 (Beatty, Vice-Chair) It asserts that gIVen the unusual and peculIar CIrcumstances of thIs case, Mr Tefoglou should have been allowed leave With pay to represent Mr Walls at hIs Stage Two meetmg, The Uruon further contends that smce the Employer did not object to Mr Tefoglou's representmg Mr Walls at the rescheduled Stage Two meetmg, It could not ( properly obJect to paymg hIm under ArtIcle 22 6 3 It contends that, m essence, the \., 6 Employer waived any objectiOn It rmght have had to Mr Tefoglou's authonty to represent Mr Walls. The Employer subrmts that the Issue IS not one of representatIOn, but one of pay under ArtIcle 22 6 3 It asserts that smce Mr Walls was reassIgned to BrookSIde Youth Centre, only a BrooksIde steward was "authonzed to represent" the gnevor under ArtIcle 226,3 and thereby receIve paid leave for that purpose. While It acknowledges that Mr Tefoglou could represent Mr Walls at the Stage Two meetmg, It asserts that he need not be paId for hIs time by the Employer smce BrooksIde was not an "area" for whIch Mr Tefoglou was authonzed to represent employees The Employer notes that Mr Walls IrutIated hIs gnevance while at BrooksIde, subrmttmg It to hIs supervIsor there, and that Mr Walls dId not contact the Wlutby Jail m filmg hIs gnevance. It subrmts that It IS unfair for Mr Walls to file hIs gnevance at BrooksIde, proceed through Stage One and then show up at Stage Two, claIrmng that the gnevance IS a Wlutby Jail gnevance The Employer further asserts that to allow Mr Tefoglou's claim would open up the flood-gates for stewards, on employer-paid time, to travel to wherever the gnevor IS, regardless of the "area" they have been desIgnated by the Uruon to represent. It asserts that the facts of thIs case are not uruque and that there IS regular employee movement among correctIOnal mstItutiOns Consequently, It asserts that allowmg stewards to follow the gnevor would cause havoc on the Employer's operatiOns, and that to accept the r Uruon's pOSItIOn would, m effect, amend the collectIve agreement, , \ 7 In support of Its pOSItiOn, the Employer cItes to In Re Nabi, supra, as well as OPSEU (Muscatel/oj and Ministry of Correctional Services (1985), GSB No 762/83 (Brent, Vice-ChaIr) and Glenny and Ministry of Government Services (1981), GSB No 586/80 (Swmton, Vice-ChaIr) . Decision The Issue IS whether, under the facts presented, Mr Tefoglou was "the Uruon Steward who [was] authonzed to represent the gnevor" under ArtIcle 2263 and thus entitled to "be gIVen time off With no loss of pay and With no loss of credIts to attend such meetmgs." Under ArtIcle 22 5, an "employee may be accomparued and represented by an employee representatIve at each stage of the gnevance procedure" Under thIs proViSIOn, Mr Walls could select Mr Tefoglou to accompany and represent hIm at hIs Stage Two meetmg and the Employer could not object to Mr Walls' chOIce. Consequently, the Employer's failure to object to Mr Tefoglou's attendance at the rescheduled Stage Two meetmg or hIs abihty to represent Mr Walls at that meetmg dId not constItute a waIver or acknowledgment by the Employer of Mr Tefoglou's nght to be paId for hIs time under ArtIcle 22 6 3 The questIon presented here IS whether Mr Tefoglou must be gIven paid time off under ArtIcle 22 6 3 to represent Mr Walls and that, m turn, depends on whether he was "authonzed to represent the gnevor " \ 8 ThIs Issue was addressed, m part, by the GrIevance Settlement Board m Re Nabi and Ministry of Community & Social Services (1977), GSB No 114/76 (Beatty, Vice- ChaIr) In that case, a gnevor had selected a co-worker from another Mirustry to represent hIm dunng the gnevance procedure ThIs mdlVldual, Mr NabI, had not been deSIgnated by' the Uruon under ArtIcle 25 8, whIch like Article 22 6 4 of the current agreement, proVided that the "Uruon would adVise the DIrectors of Personnel of the affected Mirustnes of the Uruon Stewards together With the areas they are authonzed to represent. ", but he nonetheless sought two hours of paId leave for the tIme he spent representmg the gnevor pursuant to ArtIcle 2543 (whIch IS eqUivalent to ArtIcle 2263 of the current collectIve agreement) The Board derued the gnevance, concludmg that to be paId for the tIme he spent representmg the gnevor, the "mdIVIdual must be one of those persons described m ArtIcle 25 8 who has been 'authorIzed', m advance, pursuant to ItS terms," (DeCISIon, p 10) While the gnevor was entItled to choose any person he wanted to represent hIm III the gnevance procedure, the questIon of whether that person would receIve paId tIme offwas governed by ArtIcle 25 8 As the Board concluded at p 12 [T]here IS nothIng whIch we have Said m thIs award whIch would affect the mdIVIdual's nght to select an employee representatIve nor the uruon's nght to select or deSIgnate those persons whom It deSIres to have represented ItS members. That IS to say and however an employee may choose to have someone aSSIst hIm or her m the filIng, processmg or presentatIon of a gnevance or regardless of how the uruon seeks to deploy ItS staff or elected personnel m such matters, all that we have determmed m thIs award IS that If that representatIve IS to secure the paId leave that IS contemplated by ArtIcle 25 4 3 then he or she must be "authonzed" and m the manner that IS described m ArtIcle 25 8 The gnevor not bemg one of those persons, he IS not entItled to the leave proVided therem. I \. 9 Consequently, to receIve "tIme off With no loss of pay and With no loss of credIts to attend such meetmgs", a gnevor's representatIve must be "authonzed" under ArtIcle 2264 That proVisIOn states, m pertment part, that the "Uruon shall adVise the DIrectors of Human Resources of the affected rrurustnes. of the Uruon Stewards together With the areas they are 'authonzed to represent. " Pursuant to tlus proViSIon, the Uruon listed Mr Tefoglou, among many others, and the specIfic areas for wluch they are authonzed to represent employees. For Mr Tefoglou, that area IS Wlutby Jail. As a result, Mr Tefoglou's entItlement to paId leave pursuant to ArtIcle 2263 depends on whether Mr Walls was an employee of Wlutby Jailor BrooksIde Youth Centre when he filed hIs gnevance If he was an employee of Wlutby Jail, then Mr Tefoglou was "authonzed to represent" hIm. If he was an employee of BrooksIde Youth Centre, then Mr Tefoglou was not "authonzed to represent" hIm and would not, under In Re Nabi, supra, be entItled to paId tIme off for that purpose If so, Mr Tefoglou could still represent Mr Walls at the gnevance meetmgs, he would Just not be entItled to "be gIVen time off wIth no loss of pay and With no loss of credIts to attend such meetmgs," According to the Uruon, even though Mr Walls had been reassIgned to BrookSIde, he should be consIdered an employee of Wlutby Jail for the purpose of lus July 4, 1997 gnevance. It relIes on the fact that the gnevance mvolved the decIsiOn of the Supenntendent of Wlutby Jail to reassIgn hIm temporarily to BrooksIde Youth Centre and thus had nothIng to do With BrooksIde, the recelVlng mstItutIOn. It notes that Mr Walls was retaIned on the seruonty lIst at Wlutby Jail and that lus travel expenses contmued to be paId by Wlutby Jail. Further, It asserts that allOWing Mr Tefoglou to represent the 10 gnevor would facilItate the gnevance process smce he had knowledge of the hIstory and CIrcumstances of Mr Walls' claim for accommodatiOn, somethmg the local BrooksIde Youth Centre stewards dId not possess As a result, for Mr Walls' July 4th gnevance, the Uruon asserts that he should be consIdered an employee of Wlutby even though for gnevances pertaIrung to actIOns that took place while Mr Walls worked at BrooksIde, he would be an employee of BrooksIde for such matters. In some ways the Uruon's argument IS appealmg. A uruon representatIve With knowledge of the hIstory and CIrcumstances of Mr Walls SItuatIOn and partIcular Issues would certainly tend to facilItate dISCUSSIon of the gnevance As the Druon asserts, uruon representatIves do not attend Just to be a "warm body" at the meetmg, nor are they always mterchangeable TheIr Job, If the employee so chooses, IS to accompany and represent the gnevor dunng the gnevance meetmgs. Yet while the Uruon's argument holds some appeal, the language of ArtIcle 2264, cannot support such an approach to who IS "authonzed to represent" employees. It clearly lImIts uruon stewards to an "area they are authonzed to represent. " - a speCIfic geographIc area or correctIonal mstItutiOn. In the normal case, thIs makes a great deal of sense A local representatIve will usually be familIar With the gnevor as well as the local InstItutIon and Issues. Further, local representatiOn IS converuent. No one has to travel or mcur the costs that would mvolve In tills case, however, the gnevor changed work locatIons between the time the gnevance arose and was filed. As a result, although the 11 gnevance pertamed to Wlutby Jail, Mr Walls was no longer workmg there when he filed the gnevance By Its express terms, the language of ArtIcle 22 6 4 limIts uruon stewards to a specIfic "area." It does not contemplate the type of SItuatIon that arose here or allow for a uruon steward to follow the gnevor Nor does It tIe authonty to represent a gnevor to the nature or subJect matter of the gnevance Bemg "authonzed to represent" a gnevor depends solely on locatiOn, and that can only be determmed at the time the gnevance IS filed. Once Mr Walls' reassIgnment became effectIve on June 9, 1997, he became a temporary employee of BrookSIde Youth Centre; he could not smlUltaneously be an "employee" ofWlutby Jail and BrookSIde Youth Centre To accept that argument would effectIvely negate the "area" concept set out m ArtIcle 22 6 4 While perhaps an exceptIon should have been made m thIs case, gtven the unusual CIrcumstances of Mr Walls' SItuatiOn, until the partIes agree to such an exceptIOn, the language of ArtIcle 22 6 4 controls and that proVISIon tIes an employee's authOrIty to represent a gnevor for the purposes of ArtIcle 22 6 3 to a speCIfic, deSIgnated "area" Under the facts here, when Mr Walls changed hIs work locatIon, hIs "area" changed and With that who was "authonzed to represent" hIm under ArtIcle 22 6 4 Had Mr Walls filed hIs gnevance while still at Wlutby Jail (whIch he could have done), Mr Tefoglou would have been "authonzed to represent" hIm under ArtIcle 22 6,3 12 . But Mr Walls dId not file hIs gnevance while he was still at Wlutby Jail, he filed It while assIgned to BrooksIde Youth Centre As a result, although Mr Walls could request and have Mr Tefoglou represent hIm, Mr Tefoglou was not "authonzed to represent" hIm under ArtIcle 22 6 3 and was therefore not entItled to "be given tIme off With no loss of pay and With no loss of credIts to attend such meetmgs," Under the facts presented and . the relevant proViSIons of the collectIve agreement, I must conclude that the Mirustry's derual of Mr Tefoglou's request for leave to attend the August 11, 1997 Stage Two meetmg at BrooksIde Youth Centre was not Improper and dId not Violate the collectIve agreement. Accordmgly, for all the reasons set forth above, the gnevance IS dIsrmssed, Dated thIs 2nd day of November, 1998 m Toronto air 13