Loading...
HomeMy WebLinkAbout1998-0789.McGann.01-01-18 Decision o NTARl 0 EMPLOYES DE LA cm.'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #0789/98 1080/98 1252/98 1253/98 1620/98 2005/98 1440/00 OPSEU#98B397 98B506 98B612, 98B613 99B049 99B325 OlB028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (McGann) Gnevor - and - The Crown m RIght of Ontano (Mimsm of the Attome, General) Employer BEFORE Darnel A. HarrIs Vice Chalf FOR THE Andrew Pmto Counsel GRIEVOR Bamster and SohcItor FOR THE Len HatzIs, Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING September 10 1998 June 16 1999 December 15 1999 Februan 1 2000 Felruan 15 2000 Februan 23 2000 Februan 25 2000 Ma, 30 2000 June 16 2000 August 29 2000 September 13 2000 October 5 2000 2 The Proceedm2:s. ThIs decIsIOn deals wIth a number of gnevances, filed by OPSEU on behalf of Dag McGann, whIch relate to schedulmg and work assIgnments Mr McGann IS a cIvIl court regIstrar (hereafter CCR), bemg an unclassIfied posItIOn WIth the MmIstry of the Attorney General CCR's are assIgned to assIst a Judge whIle court IS m seSSIOn. At the commencement of these proceedmgs the gnevor had 19 gnevances The gnevances before the Board for declSlon here are as follows # DATE ARTICLE ISSUE 6) June 25, 1998 OADl wIthdrawn 7) July 15, 1998 32, antI- umon dIscnmmatIOn 8) August 12, 1998 45 1 leave credIt reports OAD 2 1 7 1J4 hours per day 31 7 1 "Clapperton" Issue 9) August 12, 1998 32 antI- umon dIscnmmatIOn m lay- off (Summer 1998) 10) August 14, 1998 32 Withdrawn 11 ) September 25, 1998 32 antI- umon dISCrImmatIOn 2261 attendance 22 6.2 attendance at GSB step meetmgs 12) October 31, 1998 31 8 attendance credIts and sIck leave 32 antI- umon dIscnmmatIOn OAD 10 stand- by time 13) November 12, 1998 3 1/3.2 stand- by time OADI0 3 14) November 19, 1998 32 antI-umon dISCnmInatIOn 226.3 attendance at step meetIngs 314 attendance at GSB 15) December 18, 1998 32 employer changed time sheets 16) December 29, 1998 21 letter of dIscIplIne 17) December 29, 1998 32 same as #16 GrIevance 6 was wIthdrawn. Gnevance 10 was wIthdrawn as duplIcatIng 9, and the umon abandoned any allegatIOns of a breach of artIcle 3 1, beIng the general anti -dISCnmInatIOn provISIOn. The Facts and SubmissIOns of the Parties. In large measure the parties are agreed on the factual context wIthIn whIch these gnevances anse It IS most helpful to sImply sketch out the matenal facts relevant to each gnevance wIth attnbutIOn to partIcular wItnesses as needed. CCR's are assIgned to specIfic courtrooms to assIst the presIdIng Judge Other personne I assIgned to the court are the court serVIce officer and court reporters It IS the CCR that acts as assIstant to the Judge They escort the Judge to and from court, assIst WIth the carryIng of books and the lIke and generally provIde such serVIces as the Judge may reqUIre IncludIng duties In the courtroom. 4 The CCR IS generally expected to report for work at 9 30 am, subject to a dIrectIOn from the CCR's supervIsor, on hIS or her own behalf or on behalf of a Judge, that a dIfferent tIme IS reqUIred. There IS no questIOn that the vaganes of the court schedule leads to uneven and somewhat unpredIctable reqUIrements for CCR's Attached as they are to servIng partIcular Judges and partIcular courtrooms, theIr servIces may not be reqUIred every day or all day That IS the nub of the vanous dIsputes between the partIes In these matters The MInIStry of the Attorney General has Interpreted the collectIve agreement as permIttIng It to have the CCR's report for work at 9 30 am. At that tIme each receIves hIS or her assIgnment to a Judge and courtroom. They attend before the Judge and assIst so long as there IS work to be done Generally, on the close of that Judge's court dutIes for the day, the CCR's dutIes are complete They are gIven an extra lIz hour to complete any admInIstratIve tasks That sItuatIOn may result In the CCR beIng provIded wIth less than seven and one-quarter hours of work per day The MInIStry only pays the CCR for the tIme actually worked. The Umon says that once a CCR attends at work they should thereby be consIdered to be "scheduled" for the day and entItled to 7 1J4 hours pay, IrrespectIve of the tIme actually worked. The gnevances dealt wIth In thIS decIsIOn may be dIvIded for convemence Into process and content Issues I wIll fIrst deal wIth the process gnevances, beIng those matters that arose secondanly from the dIfference between 5 the partIes as to the nght of the CCR's to 7 1J4 hours pay no matter how long they actually work. The Stand-by Grievances Matters scheduled for hearIng may settle and leave a CCR wIth no assIgnment for the day when they report for work at 9 30 am. The supervIsor then may ask the CCR to "stand- by" m the event that theIr serVIces are needed elsewhere The CCR IS then kept for up to two hours If they were not needed, they would be paid two hours wages and released for the day In gnevances 12 and 13 ObjectIOn IS raised to the charactenzatIOn of thIS sItuatIOn as "stand-by" tIme OAD 10m the collectIve agreement defines stand- by tIme as "a penod of tIme that IS not a regular workmg penod." Dunng that tIme the employee IS out of the workplace, but reqUIred to be aVailable to receIve a call to return to work The employee IS paid "stand by" premIUm for that mconvemence The umon's ObjectIOn IS that the gnevor's supervIsor IS usmg the phrase "stand- by" m ItS vernacular sense rather than as the phrase IS meant m the collectIve agreement. There IS no ment to these gnevances The request that someone "stand-by" dunng a regular wOrklll:); penod IS a reasonable and conventIOnal use of the EnglIsh language and does not amount to a vIOlatIOn of the collectIve agreement. It should be noted that the umon IS not makmg a claim for stand-by 6 pay, smce the employee IS bemg paid for at least two- hours whIle waItmg to be gIven a work assIgnment The ObjectIOn IS that the employer uses the words "stand- by" when askmg the CCR to Wait for a work assIgnment. Although there IS some potential for confusIOn, It IS not a vIOlatIOn of the collective agreement The claim for relIef set out on the face of the gnevances IS that the manager be dIscIplmed and apologIze for askmg the gnevor to "stand-by" Between them the gnevances claim $1,550,00000 m damages Those gnevances are dIsmIssed. Grievances AnSlll!! from the Gnevor FillIn!! out his Attendance Sheets The heart of the umon's case IS that when a CCR reports for a day's work they ought to be consIdered as scheduled to work 7 1J4 hours that day They should be paid for the full day rather than the time actually worked If less than 7 1J4 hours The gnevor made that understandmg known to the employer and has filed gnevances claImmg the unpaid hours Those gnevances are dealt wIth below as "content" gnevances He also began fillIng out hIS time sheets to show 7 1J4 hours, even on days that he actually worked fewer than 7 1J4 hours The gnevor says that he was harassed by the employer for assertmg hIS nght to be paid for 7 1J4 hours on every day he reported to work. He also says that the emp loyer exhIbIted an antI- umon ammus m ItS dealmgs WIth hIm on these Issues GrIevances 7, 15, 16 and 17 deal wIth these allegatIOns 7 GrIevance 7 alleges that the gnevor's supervIsor at the time, Bev Eldndge, exhIbIted an anh-umon ammus at a meetmg held July 14, 1998 to dISCUSS the gnevor's practice of fillIng m 7 1J4 hours on hIS tImesheet rather than hIS actual hours worked. The gnevor testified that m the course of that meetmg he was told to fill m hIS actual hours worked. He was also told that he would be repnmanded If he contmued to tell hIS co- workers to fill m 7 1J4 hours rather than the actual number of hours they had worked. The umon said that the gnevor, as a steward, was entitled to advIse bargammg umt members of theIr nghts and It was a vIOlatIOn of artIcle 3 2 to prevent hIm from domg so ArtIcle 3 2 reads as follows 3.2 There shall be no dIscnmmatlOn or harassment practIced b, reason of an employee s membershIp or actIvI~ m the Dmon. There can be no doubt that a umon steward IS entitled to advIse bargammg umt members of theIr nghts Further, where nghts are thought to be mfnnged, It IS appropnate to file a gnevance However, m these cIrcumstances, the eVIdence IS clear that the employer knew of the gnevor's VIew regardmg payment for hours not worked, dIsagreed wIth that VIew and mstructed the gnevor as to how he was to fill out hIS attendance sheets Further, the gnevor was counseled to stop tellIng hIS fellow workers to fill out theIr attendance sheets contrary to the employer's mstructIOns In my VIew It was not a breach of artIcle 3 2 for the employer to tell the gnevor to cease and desIst from that conduct. It was appropnate for the 8 employer to fairly put the gnevor on notice that he mIght be repnmanded If he dId not stop It IS tnte that an employee IS to follow the employer's lawful orders, that IS, "act now, gneve later" The umon does not complam that the dIrectIOn gIven to the gnevor to mark down only hIS actual hours of work was a vIOlatIOn of the agreement He was reqUIred to comply wIth the employer's dIrectIOns until the Issue was resolved wIth or wIthout arbItratIOn. The same approach was reqUIred of all employees and the employer sImply further reqUIred that the gnevor not gIve contrary mstructIOns to hIS fellow employees It was not a vIOlatIOn of the agreement for the employer to tell the gnevor to stop encouragmg hIS co-worker's to dIsobey the employer's orders regardmg the way they were to fill out the attendance sheets GrIevance 7 IS dIsmIssed. GrIevances 15, 16 and 17 also mvolve the dIspute as to how to fill out the attendance sheets These gnevances flow dIrectly from a letter to the gnevor dated December 18, 1998 That letter provIded a chart that compared the gnevor's hours as set out m the attendance sheet to the hours actually worked. The number of hours worked was calculated on the basIs of the number of hours that the courts to whIch the gnevor was assIgned actually operated. Gnevance 15 complams that It was a breach of artIcle 3 2 for the employer to have altered hIS hours on hIS attendance sheet wIthout pnor consultatIOn wIth hIm. GrIevance 16 complams that the letter Itself IS unjust dIscIplme GrIevance 17 complamed of the manner by whIch the letter was delIvered to hIm. 9 The hIstOry of thIS aspect of the matter mcludes a letter to the gnevor dated January 6, 1997 from the Court ServIces Manager, Huguette G Malyon. The gnevor had prevIOusly complamed that a start tIme had been changed on hIS sIgn- m sheet wIthout hIS authonzatIOn or notIficatIOn. The Court ServIces Manager agreed that such a practIce was unacceptable and vanous supervIsors were so advIsed. The umon relIed on that letter as requmng the gnevor's authonzatIOn and pnor notIficatIOn before changes could be made to hIS tIme sheets m December 1998, some two year's later On that basIs, It was argued that gnevance 15 should be allowed. I dIsagree The mtervenmg background IS set out m the first paragraph of the December 18, 1998 letter as follows On Juh 14th 1998 Chervl McCalmont, the pnor Actmg Manager of Court OperatIOns, dIscussed WIth vou her concern that the hours of work vou had been recordmg m the daih attendance records for regIstrars were maccurate On August 4th 1998 Ms. McCalmont wrote to vou and agam mformed vou that vou had been mcorrecth recordmg vours [SIC] hours worked as 7.25 and asked vou to report onh the hours that vou have actualh work m the courtroom (Attachment #1) I have recenth revIewed the hours that vou recorded m the daily attendance records for regIstrars and the, agam do not correspond WIth the daih courtroom utihzatIOn sheet. You have contmued to maccurateh record vou hours worked as 7.25 despIte Ms McCalmont s requests that vou cease domg so It may well be that the employer's umlateral changes mIght result m some maccuraCIes As the gnevor testIfied, calculatmg hIS wages based on hIS tIme m court may not capture other, valId W)rk assIgnments that took place after court closed. I also agree that as a general rule an employer ought not to make umlateral 10 changes to an employee's tImesheet Rather, any concern ought to be brought to the employee's attentIOn for clanficatIOn pnor to the employer takmg actIOn. However, m the CIrcumstances of thIS case It IS clear that the gnevor had receIved explIcIt mstructIOns that hIS time sheet was to be filled out showmg hIS actual hours worked. He was not to put down hours he had not worked. In VIew of hIS contumacIOus dIsregard of the employer's dIrectIOn, It was not unreasonable for the employer to estimate hIS hours GrIevance 16 alleges that the letter IS unJust. The text of the gnevance sets out the umon's posItIOn as follow; The employer has vIOlated m, nghts under artlcle 21 and/or an, other clause m the collectIve agreement whIch ma, be apphcable There IS no Just cause for thIS letter of dIscIphne The employer s past practIce IS to record m, hours accordmg to Im utihzatIon sheet. It has alread, been dIscussed at length at stage 2 meetmgs wh, thIS IS bemg done Also there has been no final ruhng upon Mr McGann s past gnevance about thIS Issue No warmng of dIscIphne was gIven to Mr McGann verbalh or m wntmg. There was no loss to the employer At least part of the reasonmg behmd the claim that the letter of repnmand IS unjust IS the assertIOn that the gnevor's contmued practice of puttmg 7 1J4 hours on hIS attendance sheet IS Justified because the employer would change It, and the content, or substantive, Issue had not yet been resolved. That IS, the gnevance seems to be saymg that he was Justified m what he was domg In hIS eVIdence the gnevor said he was told at the second step meetmg m July that If he contmued to 11 put 7 1J4 hours they would change It. He took that as lIcense to contInue puttIng down 7 1J4 hours The gnevor said that the letter of December 18, 1998 came as a surpnse to hIm because he had been told at the July 14, 1998 meetIng he would be repnmanded If he told others to mark theIr tIme sheets wIth 7 1J4 hours He had not told others to do so, although he contInued to mark hIS own tIme sheets Incorrectly There can be no doubt that he had been told on July 14 to put hIS actual hours of work on hIS tIme sheets He was told agaIn, by correspondence dated August 4, to do so because he persIsted In markIng them as 7 1J4 hours Through to December he contInued to mark them Incorrectly He dId not stop puttIng 7 1J4 hours until he receIved the letter of December 18 He said the letter was gIven to hIm to show hIm "the power of the employer" and that the letter "forced" hIm to change hIS ways On the eVIdence, the letter of repnmand had the desIred effect and was a measured response to the gnevor's contInued and repeated dIsobedIence I cannot find that the wntten repnmand was Inappropnate or unjust GrIevance 17 IS agaInst the manner In whIch the letter of December 18, 1998 was delIvered to hIm. That gnevance IS also wIthout ment. The eVIdence IS that the gnevor's supervIsor attended at the courtroom where the gnevor was assIgned. She caused the gnevor to be made aware that she would lIke to see hIm after court closed. She dId so by sendIng hIm a note through the deputy regIstrar There IS no 12 eVIdence that that process was mdIscrete m any way Seemmgly, the court sat late, so the supervIsor left the letter, m a sealed envelope addressed to hIm, m the area where the CCR's fill out theIr attendance sheets He was certam to find It there and he dId. The envelope was marked eIther "personal" or "confidential" The umon argued that placmg the letter m an open area, accessIble by a number of staff, was a form of chastIzement agamst the gnevor as a member of the Umon contrary to artIcle 3 2 It IS dIfficult to see any cIrcumstances where leavmg a pnvate, sealed letter, marked personal or confidential, m an mternal area of the workplace where the gnevor was sure to receIve It could amount to dIscnmmatIOn contrary to s 3 2 Certamly here, on the eVIdence, leavmg the letter as It was left for the gnevor was bemgn and not a breach of the collective agreement The Content of Substantive Grievances. As set out above, the mam contentIOus Issue between the partIes IS whether the collective agreement provIdes that CCR's only be paid for time actually worked. GrIevance 8 raises thIS Issue As an unclassIfied employee, the gnevor's employment IS establIshed by mdIvIdual contracts that are renewed from time to time Those mdIvIdual contracts are, of course, governed by the collective agreement. The mdIvIdual 13 contract mdIcates that the gnevor IS covered by a collective agreement, and he IS on schedule 3- 7 The back of the contract provIdes the followmg explanatIOn of schedule 3- 7 SCHEDULE CODE The schedule code must be completed on all contracts. Schedule codes relate to hours of work and overtIme condItIons. Schedule DefillItIon 3-7 * the normal hours of work are 36 V4 hours per week 4-7 * the normal hours of work are 40 hours per week 6 * the normal hours of work van ill accordance WIth the reqUIrements of the posItIon but are a millImum of 36 V4 hours per week At the heart of the umon's case IS the meamng of schedule 3-7 m the context of paragraph 7 of the mdIvIdual contract, whIch mcludes the followmg remarks Irregular hours as reqUIred up to 36.25 hours per week. The umon concedes that paragraph 7 IS on ItS face a valId exerCIse of the employer's nght to prescnbe hours of work pursuant to the regulatIOns under the PublIc ServIce ActR.S 0 1990 c P 47, as amended [see Part V s 29 (1)(1)] However, paragraph 7 IS Said to be mvalId as contrary to the collective agreement That IS, the collective agreement trumps that regulatory authonty The provIsIOns of the collective agreement, whIch the Umon relIed upon, start wIth the Salary Schedule of the Office AdmmIstratIOn Bargammg Umt, of whIch 14 the gnevor IS a member He IS classIfied as an OAG 6, and by that Salary Schedule IS Said to be placed on "Hours of Work Schedule" 3- 7 ArtIcle OAD 2 1 defines the schedule as follows OAD21 SCHEDULE 3 and 3 7 The normal hours of work for employees on these schedules shall be thIm-sIx and one-quarter (36 V4) hours per week and seven and one- quarter (7 V4) hours per da, It IS concede by the Umon that OAD 2 1 techmcally does not apply to unclassIfied employees Articles 30 1 and 31 16 of the central agreement say whIch provIsIOns of the collective agreement do apply to unclassIfied employees and OAD 2 1 IS not one of the lIsted artIcles The Umon says that there IS no other defimtIOn of schedule 3-7 m the collective agreement. Accordmgly, the allocatIOn of unclassIfied OAG employees to schedule 3- 7 m the Salary Schedule must rely on OAD 2 1 for ItS defimtIOn. There IS no other defimtIOn, and Identical words must be gIven Identical meanmg Therefore, the umon says that the gnevor's normal hours of work must be 36 1J4 hours per week and 7 1J4 hours per day The Umon argued that the Issue here IS what hours per day the employer may schedule, not the hours per week. It IS open to the employer to schedule Irregular hours per week, but not per day Vanous provIsIOns of the collective agreement were said to be consIstent WIth, and thereby SupportIve of, that proposItIOn. 15 Article 31 3 1 (d), the overtIme provIsIOn, talks of regularly schedule work days, not work hours ArtIcle 31 4 the reportmg pay provlSlon, permIts bemg scheduled for less than two hours and provIdes for two hours reportmg pay If not prevIOusly scheduled for less than two hours Here, the CCR's are not scheduled for some number of hours They are not scheduled for any hours at all Other provIsIOns, such as stand-by pay and on-call pay apply to unclassIfied staff such as the CCR's Those provIsIOns would permIt the employer to staff the courts wIthout umlaterally restnctmg theIr daily hours The Umon also said that the employer may vary the schedule of 7 1J4 hours m lImIted cIrcumstances Here the employer was said to have Imposed a new set of "normal hours" whIch IS no schedule at all Further, the Umon relIed on two polIcy documents, dIstnbuted to employees, dated December 1994 and Apnl 1997 respectively, the latter of whIch mcludes the followmg Staff Work Hours Workmg hours of staff are from 8 30 a.ill. to 4 45 p.m. unless ?? specIficalh arranged WIth manager and 7 V4 hours per da, of 36 Vz hours per week IS adhered to ?'1 staff IS unclassIfied Court Support Staff (Court Reporters, Court RegIstrars & Court ServIces Officers) - startIng tIme ma, van from 8.30 a.m. to 9'30 a.m. EmphasIs must be placed on provIdmg adequate servIce to the pubhc at all tImes durmg regular office hours. 16 The Umon submItted that the employer's polIcy document was consIstent WIth the Umon's mterpretatIOn of the collective agreement that 7 1J4 hours per day are "normal workmg hours" In summary, the Umon said that the gnevor has been gIven a schedule, bemg schedule 3- 7 That schedule states that the normal hours of work are 7 1J4 hours per day The gnevor's mdIvIdual contract IS consIstent WIth the collective agreement but IS bemg Implemented by the employer contrary to the collective agreement. That IS, the collective agreement permIts Irregular hours per week but not per day Although a normal schedule IS not a guarantee of hours, where a normal schedule IS provIded, the employer IS not allowed to Impose a new schedule or no schedule at all There are collective agreement provIsIOns that permIt fleXIbIlIty for the employer, whIch have not been adhered to F mally, the present arrangements Impose unfairness and unpredIctabIlIty on the unclasSIfied CCR's The employer argued that the gnevor was appomted to the unclasSIfied servIce under s 8 of the PublIc ServIce Act. The eVIdence was said to clearly establIsh that the gnevor IS a member of group 1 of the unclasSIfied servIce pursuant to regulatIOn 977, s 6, smce he IS employed to work on an Irregular basIs due to the unpredIctabIlIty of the court system. The need for CCR's IS a functIOn of how busy the courts are on any gIven day Staffing IS sImply not predIctable 17 As to the collective agreement, the Employer submItted that artIcle 31 16 2 sets out the lIst of artIcles m the collective agreement that apply to unclassIfied staff, and OAD 2 1 IS not on that lIst. It would sImply be mcompatIble wIth the collective agreement to gIve the gnevor the benefit of OAD 2 1 when It IS specIfically not applIcable to the unclassIfied staff Accordmgly, nothmg m the collective agreement gIves the gnevor "normal hours of work." Further, the contract sIgned by the gnevor on hmng, and renewed from time to time, also eVIdences the shared understandmg that the hours of work were to be Irregular It mdIcates that he IS a part-time, group-one employee m the bargammg umt The mdIvIdual contract also mdIcates that "the rate of pay IS m accordance wIth the scheduled hours of work", whIch IS a reference to the salary schedule That parallels artIcle 31 2 1, whIch provIdes that unclassIfied employees are paid the same rate as the equivalent cIvIl servIce classIficatIOn. That IS, there IS only one salary schedule, whIch the gnevor accesses by reference The collective agreeme nt therefore provIdes that the gnevor's rate of pay IS that of the eqUIvalent cIvIl servIce classIficatIOn, bemg schedule 3-7 The gnevor's access to the benefits of schedule 3-7 IS lImIted to salary eqUIvalence That IS, the rate of pay, and when and how overtIme IS calculated. ThIs Board's JunsdIctIOn IS to arbItrate all dIfferences between the partIes ansmg from the collective agreement. The Umon emphasIzed that pursuant to artIcle 18 22 146 the Board has no JunsdIctIOn to alter, change, amend or enlarge any provIsIOn of the collective agreement" In my VIew, to allow thIS gnevance would be contrary to article 22 14 6 For the Umon to be successful, the Board must find that the gnevor IS covered by OAD 2 1, notwIthstandmg that artIcle 31 162 does not mclude OAD 21m the lIst of articles applIcable to unclassIfied employees To make OAD 2 1 applIcable the Board would m effect be addmg It to artIcle 31 16 2, contrary to artIcle 22 14 6 In the Umon's submIssIOn, the combmed effect of the mdIvIdual contract of employment and the collective agreement have already mdIrectly added OAD 2 1 to the artIcle 31 16 2 lIst by puttmg the gnevor on schedule 3- 7, whIch IS defined only by OAD 2 1 The Umon says that If the Board IS to understand the Import of schedule 3- 7, It must have reference to the only place It IS defined, bemg OAD 2 1 In ItS careful and thoughtful submIssIOn the Umon urges that It would be an alteratIOn of the collective agreement to deny the gnevor access to that defimtIOn of schedule 3 - 7 In effect, the U mon IS attemptmg to do mdIrectly what the lIst m 31 16 2 expressly demes It The better mterpretatIOn of the collective agreement harmomzes the clanty of the lIst m article 31 162 and the seemmgly contradIctory mclusIOn of the gnevor on 19 schedule 3- 7 The bargam set out on the mdIvIdual, unclassIfied agreement sIgned by the gnevor IS clearly for a job wIth "Irregular hours as reqUIred up to 3625 hours per week." That IS, the gnevor understood at hmng that hIS was a part-time job wIth Irregular hours Nonetheless, If the collective agreement were to gIve hIm a better benefit, It would prevail However, It does not. Under artIcle 31 2 1, the wage rate IS that of the "eqUIvalent cIvIl servIce classIficatIOn." That applIcable to the gnevor IS OAG 6 That classIficatIOn has an establIshed wage gnd and IS on schedule 3-7 By vIrtue of artIcle 31 16 2, the gnevor IS not entitled to the normal hours of work set out m OAD 2 1 However, by vIrtue of artIcle 31 1, vanous wage-related provIsIOns are applIcable to the gnevor, mcludmg overtIme, reportmg pay, holIdays etc In the case of overtIme, It IS necessary to determme when overtIme IS payable, for example after 7 1J4 hours or 8 hours per day F or the classIfied staff, that IS determmed by the schedule they are on. For schedule 3-7 employees It IS 7 1J4 hours For unclassIfied staff, they are m a category eqUIvalent to schedule 3- 7 for purposes of wage calculatIOn. However, that does not put them on schedule 3- 7 for purposes of "normal hours of work", whIch IS expressly excluded by 31 162 Although Identical words m a collective agreement should be gIven the same meanmg (1 e schedule 3-7 m the salary schedule and m OAD 2-1), there IS a clear mdIcatIOn m the artIcle 31 16 2 lIst that the partIes mtended otherwIse Effect must be gIven to that clear mtentIOn. Nor does the polIcy document alter the clear mtentIOn of the collective 20 agreement Even on Its face, that document contemplates the unclassIfied staff routmely workmg less than 7 1J4 hours because of theIr adjustable start time Accordmgly, the gnevor's allocatIOn to the eqUIvalent of schedule 3-7 can be seen to have utilIty and applIcabIlIty as a category for determmmg wages, overtime etc whIle mamtammg the mtegnty of the lIst m artIcle 31 16 2 Further, such a readmg IS consIstent WIth the gnevor's understandmg when he was hIred that hIS Job was part-time wIth Irregular hours up to 36 1J4 hours per week. Therefore, gnevance 8 IS demed as regards ItS claim that OAD 2 1 applIes to unclassIfied staff There IS nothmg m the collective agreement that overndes the clear mtentIOn of artIcle 31 16 2 to exclude the applIcatIOn of OAD 2 1 from unclassIfied emp loyees GrIevance 8 also makes a claim pursuant to artIcle 41 7 1 for payment of percentage m lIeu of benefits It IS agreed between the partIes that thIS claim IS covered by the decIsIOn m OPSEU (Clapperton et al) and MmIstry of the SolIcItor General and CorrectIOnal ServIces GSB 0410/97 et al (99-03-16, Petryshen) The Employer said that the gnevor had been paid pursuant to the decIsIOn m Clapperton and undertook to make any adjustments should there have been an error m ItS calculatIOns I wIll remam seIzed m the event of any outstandmg dIspute regardmg compensatIOn m that regard. 21 GrIevance 8 also alleged a breach of artIcle 45 1, whIch reads as follows 45 1 As soon as practIcable followmg the end of each quarter even employee shall be adVIsed of the number of vacatIOn and attendance credIts to whIch he or she IS entItled. The Umon submItted that artIcle 45 1 IS clear and applIes to unclassIfied staff by vIrtue of the lIst m artIcle 31 16 1 The Employer submItted that the gnevor IS rot a full time employee and would not have accumulated any leave credIts to report. The partIes admItted mto eVIdence exhIbIt 30, a report of the gnevor's hours prepared by the employer That, coupled wIth the gnevor's more general eVIdence, confirms that there were weeks m whIch the gnevor worked 36 1J4 hours Article 31 8 1 provIdes that employees who work full-time weeks m a calendar month earn the attendance credIt. If the gnevor dId so, he IS entitled to the credIt, and, even on the employer's submIssIOn, If he has accumulated credIts he IS entitled to a leave credIt report. ArtIcles 45 and 31 8 1 are raised as part of gnevance 8 and as part of gnevance 12 In VIew of the partIes' consent to the late admIsSIOn of exhIbIt 30, and the Umons 22 reservatIOn of the nght to reVIew the gnevor's hours for accuracy, I wIll remam seIzed of these aspects of gnevances 8 and 12 Grievance 9 ThIs gnevance deals wIth the gnevor's lay-off on August 18, 1998 Histoncally, the courts have been less active m the summer months Accordmgly, the employer would ask the employees If they wanted to work for the summer or be laid off That IS, employees would volunteer to take lay-off Those who dId not want to be laid off for the whole summer would be asked to take eIther July or August off and would be kept on for the other month to share the aVailable work. Smce that lay- off was due to a shortage of work, a Record of Employment was Issued and those laid-off could apply for Employment Insurance benefits In 1998 the gnevor met wIth three managers and the local presIdent m an effort to clanfy the lay-off procedure The gnevor was of the VIew that lay- off ought to be by semonty Mr KISko was a group leader at the time and was among those who met wIth the gnevor IndIcatIOns were that the summer of 1998 would be partIcularly slow He said the purpose of the meetmg was to decIde who would work whIch month of the summer He wanted to follow the past practice of askmg the employees whIch month they wanted off The gnevor wanted to allot It by semonty Mr KISko dIsagreed wIth usmg semonty because the pattern throughout the year was to dIvIde the work. Also, semor people were the ones who preferred 23 to take the summer off They decIded to put the names m a hat and draw the names to assIgn people to each month. The gnevor also noted m hIS eVIdence that a number of new hIres started m the summer of 1998 Mr KISko and Mr Myers, the Local Umon VIce PresIdent, testified that there were newly hIred employees who were tramed by way of Job shadowmg That IS, none of the new hIres took work from the pool of work aVailable to the regular employees Seemmgly, the matter of summer lay-off became an Issue m 1998 because ofa change proposed by the employer Paul Myers summanzed the status of the matter m hIS memo to Michael Cash, Court ServIces Manager dated May 29, 1998, m part as follows ThIS memo IS bemg wntten to respond to the meetmg held between Ms. Michelme Segum, Manager of CIvil Staffing and RegIstrars and C SO son Ma, 28 1998 At the meetmg, the workers were mformed that the, ma, be called mto work thIS summer even If It was for one da, a week. I find thIS comment creates a great deal of anX1e~ among workers The Umon has alread, gIven Management a cop, of a 1995 agreement, whereb, management recognIzed the courts have a precIpItous decrease m work volume dunng the summer Layoffs of staff are m the best mterest of both the workers and management. The memo states the workers should receIve theIr records of employment when there IS a lack of work. ThIs gnevance agamst the summer 1998 lay-off alleges that there was an antI- umon ammus m the arbItrary method of choosmg names out of a hat. The antI- 24 umon ammus was Said to have ansen because the result of that process was the umon steward, bemg the gnevor, was laid-off and was thereby unavailable to hIS fellow employees The Umon IS not attackmg the lay-off per se, rather the attack IS agamst a process whIch resulted m the lay- off of the steward. GIven that the process was arbItrary, It cannot be said that there was an antI-umon ammus As to the arbItrary procedure, It seems to have resulted from the gnevor's obJectIOn to the work shanng approach used m the past Further, there IS no super- semonty provIsIOn to protect stewards from lay- off It IS not suggested that the Employer was reqUIred by the collective agreement to use semonty m laymg- off due to the summer shortage, and It was unwIllIng to do so for the reasons gIven by Mr KISko In all of the cIrcumstances, there was no anttumon ammus m the summer 1998 lay- off GrIevance 9 IS demed Grievances 11 and 14 These gnevances allege that the gnevor was not paid for hIS attendance at vanous step meetmgs to dISCUSS gnevances nor for attendance at the GSB The Umon 25 concedes that he was subsequently paid for hIS actual time spent at the meetmgs However, on some occaSIOns the meetmgs were scheduled on days he was on lay- off The Umon said that he ought to have been paid 7 1J4 hours for those days for the same reasons advanced above regardmg "normal hours of work." It IS not necessary for me to deal wIth these matters, as they are moot as far as lIabIlIty IS concerned. The Employer has conceded the pomt by vIrtue of ItS payment There IS no mdIcatIOn that It takes any posItIOn other than that the gnevor IS entitled to be paid for the time claimed. I wIll remam seIzed of compensatIOn Issues m the event that the re IS a dIspute regardmg the amounts paid or owmg As to the claim for 7 1J4 hours for some of those days, that IS demed for the reasons set out above Fmally, although the gnevances allege antI-umon dIscnmmatIOn, those claims were abandoned. Summary As set out at the begmnmg of the declSlon, the gnevor has 19 gnevances before the Board. It was agreed that gnevances one through five, eIghteen and nmeteen be adJourned to be dealt wIth subsequent to the release of thIS decIsIOn. For the reasons set out above, the remammg gnevances have eIther been settled by way of payment, wIthdrawn or dIsmIssed, wIth the exceptIOn of aspects of gnevance 8 26 and gnevance 12 relatmg to leave credIt reports and attendance/sIck leave respectively I rem am seIzed of those matters pendmg clanficatIOn of the gnevor's past hours of work. I also remam seIzed of any compensatIOn Issues ansmg from the gnevances settled by way of the Employer concedmg the matters through payment of momes claimed. Dated at Toronto, thIS 18th day of January 2001 _.~ Damel A. Hams, V Ice- ChaIr