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HomeMy WebLinkAbout1977-0168.Charlebois.80-10-22Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. E. E. Charlebois (Grievor) And Ministry of Correctional Services (Employer) Professor K. P. Swan Vice-Chairman Mr. F. Collict Member Mr. G. Beaulieu Member Mr. R. Nabi, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. J. Benedict, Human Resources Management Ministry of Correctional Services Hearing: August 5th, 1980 Suite 2100, 180 Oundas Street West Toronto, Ontario . - 2 - This grievance falls to be determined on the basis of an agreed statement of facts, which we reproduce below in its entirety. 1. 2. 3. ,' 4. 5. 6. 7. 8. 9. Mr. Charlebois was employed with the Ministry of Correctional Services at the Monteith Correctional Centre in the position of Assistant to Chief Enginaar (Maintenance Mechanic 3) and was employed in this position since June 10, 1974. Mr. Charlebois is a qualified 4th Class Stationary Engineer and the attached position specification essentially outlines,,the nature of his duties. (Exhibit 1) The facilities at Monteith Correctional Centre include a stationary power plant covered by the provisions of The Operating Engineers ACt and as such requires the attendance of a qualified stationary engineer (4th class) at all times. Mr. Charlebois is normally assigned to work on the 8:OO to 17:oo shift. He does not rotate dn the other shifts on a regular basis, but he may be expected to work at other hours in an emergency situation. The original shift schedule showing Mr. Charlebois assigned to the 8:OO to 17:00 shift was prepared by Rlr. L. 0. Koski (Chief Engineer) and is attached as Exhibit 2. All persons appearing on the shift schedule are qualified stationary engineers with the exception of Mr. Vandenbosch. On November 1, 1977, at 15:OO hours Mr. Charlebois was advised by Xr:Koski that he would have a change of shift on November 3, to 16:OO to 24:00 hour shift, that is 49 hours notice. The reason for the shift change was to provide manpower coverage for the institution's steam plant, because of the absence of shift engineer Mr. M.G. St. Jean (Steam Plant Engineer) who was granted bereavement leave because of the death of his sister-in-law (in accordance with Article 10 of the Employee Benefits Agreement between the parties dated May 2, 1977). Mr. St. Jean was scheduled to work the 16:OO to 24:00 shift on November 3, 1977, and was scheduled for regular days off on November 1 and November 2 1977. Mr. St. Jean advised Mr. Koski of the death of his sister- in-law on November 1 at about between 1:00 and 2:00 p.m. The sister-in-law died during the evening of October 31, 1977. On November 3 the other shift engineers were scheduled to work as follows: 10. 11. 12. 13. 14. 15. 16. 1) Mr. J.G. Grandmont ' - regular day off 2) Mr. M. Llanis - 8:OO - 16:OO hour shift 3) ,Mr. ~LT. D. Hart - 24:00'- 08:OO hour shift In addition to the above mentioned change, Mr. Koski also rescheduled Mr. Charlebois to work the 16:00 to 24:00 hour shift on November 4 and Mr. Danis to work the 08:OO to 16:OO shift on November 4 which was Mr. Danis scheduled day off, in order to cover the absence of Mr. St. Jean. Mr. Charlebois worked the 16:OO hour to 24:00 hour shift on November 3 and November 4 and he received regular wages. Mr. Danis worked the 8:OO to 16:OO shift on November 4 and he received the overtime rate for this shift in accordance with Article 13. It is normal practice in the power house to replace an employee absent due to illness in order to meet the requirements of S.19 of the Operating Engineers Act. Since there are no other persons with the necessary qualifi- cations employed at Monteith Correctional Centre a replace- ment is normally made by asking one of the staff named on the shift schedule (Exhibit 2) to work a double shift or to come in on his day off. Payment of employees dcting in such circumstances (i.e. item 12) are made in accordance with the provisions of cl. 13.12 of the Working Conditions Collective Agreement. As an alternative to the above arrangement, the Chief Engineer may decide to provide the necessary replacement coverage him- self, however, the Chief Engineer regularly works the 0800 to 1700 hrs. shift. To this statement were attached a job description and a schedule -3- as posted for the grievor at the material time; there is no need to reproduce these here. The relevant position of the collective agreement in operation at the material time is Article 10.1, which provides: Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee seventy-two (72) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified seventy-two (72) hours in advance he shall be paid time and one-half (l-4) for the first eight (8) hours i . - 4 - worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the Ministry's control. As the agreed statemen~t indicates, the grievor's shift had been posted as required, and was then altered to accommodate the bereavement leave. This alteration was made on less than 72 hours' notice, and the grievor should thus have been paid time and one-half for the first eight hours worked on the changed shift. He was paid at straight time, however, and the issue is whether the employer's assertion is correct that the change was "caused by events beyond the Ministry's control." Put simply, the employer's case is that the cause of the shift change was 'the death of Mr. St. Jean's sister-in-law, an. event clearly beyond the Ministry's control. which led inexorably to the bereavement leave, which is mandatory under the collective agreement, and the necessity to change the grievor's shift to'cover for Mr. St. Jean in order to meet the requirements of the Operating Engineers Act.~ The Union's case is that the cause of the shift change was simply the employer's deliberate, informed choice of that one possible solution among the many available to meet its obligations under the collective agreement and the operating Engineers Act. This is a case of first impression for this Board, and it appears to be unique in that, among the reported cases to date on events "beyond the control" of an employer, it is the first to require the interpretation of such an exemption for a change in shift schedule. All of the reported cases dealing with the construction of similar words relate to call-back or reporting pay and thus d,iffer in detail from the present case, however, much the underlying principles may be the same. Moreover, the clause is - 5 - written in simple, clear language, unadorned with the examples of trigger- ing events which render the clauses in many of the cases subject to inter- pretation under the ejusdem generis rule. As a consequence, there is I little arbitral jurisprudence to assist us. The purpose of a clause like Article 10.1 is to strike a reasonable balance between the interests of the employer and those of the employees. Here the employer's interest is protected by an unlimited right to schedule and alter shifts. The employees' interests are protected by a requirement for advance scheduling and provision for notice of alteration of shifts once scheduled, with a penalty in premium pay exacted when the notice is not timely. That balance is clearly the main thrust of the clause, and the "beyond control" proviso may be seen as a measure to protect the employer from excessive exposure in extraordinary circumstances. It is undoubtedly because of such a view of the purpose of such provisions that they have been strictly construed by arbitrators in the past: see I Re U.A.W. and Fruehauf Trailer Co. of Canada Ltd. (1969)‘ 21 L.A.C. 138 (Simmons) ; Re Lithographers & Photoengravers Int’l Union and American Can of Canada Ltd. (1970), 21 L.A.C. 148 (Weatherill); Re Sisco Tubes Ltd. and U.S.W., Local 8341~ (1977), 15 L.A.C. (Zd) 99 (Linden). That is also why some of the cases inject an element of foreseeability into the construction of such clauses: Re United Electrical Workers, Local 520 and Brown Boqgs Foundry & Machine Co. Ltd. (1948), 1 L.A.C. 23 (Brady). In the present case, we are of the view that the grievance must be upheld. There are two possible justifications available for this conclu- sion, and either appears to be sufficient. First, absence of employees from time to time is perfectly normal, and often occurs on short notice. - 6 - The collective agreement provides for a number of types of mandatory leave, and at the very least bereavement leave, sick leave and union leave could be expected to cause sudden absences and a need to fill the vacancy quickly where an essential employee is involved. What is foreseeable may be provided against, and a failure to make reasonable provision to meet such contingencies without having to alter shifts on insufficient notice is not beyond the employers control. This is the essence of the BT‘OWR adogs award, m. In our view, the better approach is simply to construe the provision accordingly to its plain meaning. The clause provides for an exemption only for shift changes "caused by events beyond the Ministry's control". The only "event" relied upon by the employer is the death of another employee's relative. Did this "cause" the rescheduling? We cannot find that it did. The agreed statement of facts makes it clear that a number of methods of covering for Mr. St. Jean were available: an employee on scheduled days off could be called in, someone could be asked to work a double shift or the Chief Engineer could himself cover the shift. Here the employer chose one of the alternatives over the others, and changed Mr. Charlebois' shift. We accept that the death, clearly beyond the employer's control, caused the vacancy on Mr. St. Jean's shift. It did not, however, "cause" the shift change, which resulted entirely from a management choice to use that method, of at least three alternatives, to cover the vacancy. The employer has a perfect right to choose this solution under the collective agreement, but if it is done~on short notice it will attract premium pay. - 7 - The employer's argument suggests that a decision in favour of the union would render the proviso to Article 10.1 devoid of content. We do not agree. We do not think it would serve any purpose to list the sorts of events which would be,beyond an employer's control; although they are suggested in the jurisprudence. But certainly there are any number of events beyond the simple day-to-day operation of the leave provisions of the collective agreement which would more reason- ably attract the provision. In the result, the grievance succeeds, and the grievor is entitled to premium pay for the disputed shift. In the unlikely event that the amount payable cannot be agreed, we remain seized of the matter to settle it. Dated at Toronto this 22nd day of October 1980. Professor K. P. Swan Vice-Chairman I dissent (see attached) Mr. F. Collict Member /T I concur Mr. G. Beaulieu Member I dissent with the majority award. 1. The majority award at page 6 states that, "What is foreseeable may be provided against, and 'a failure to make reasonable provision to meet such contingencies without having to alter shifts on insufficient notice is not beyond the employer's control. This is the essence of the Brown Boggs award, supra." (underscoring add&) The minority position concedes the first sentence in the above. However, it would dispute that this is the essence of the Brown Boggs award. Indeed, the significant principle set out in the same Brown Boggs award ((1 L.A.C. 23 (Brady)), is as follows: "Union and company representatives in an arbitration case will present conflicting intentions. The Board is thus compelled to depend upon the actual- the Aqreement and interpret them as best it can. Doubtless this procedure leads to a certain legalism in arbitration, and a rigid legalism in labour relations is always to be deplored. But the remedy is to dispose of such matters as the present one in the lower steps of the grievance procedure, wherein, if a conciliatory ' attitude is present on both sides, a settlement can usually be attained in keeping with what is practical." (underscoring added) In effect, therefore, it is the interpretation of Article 10.1 of the Collective Agreement between the parties that is at issue in this case. 2. Both parties have agreed to a Statement of Facts as set.out in the majority award. Hence, both parties have agreed that a variety of practices have obtained with reference to the replace- ment of employees on short notice. in addition, neither party used "past practice" to clarify any ambignity as to language. . We are left, thereforel with tne nice problem of interpretation of Article 10.1. What then, is the construction and inteqretaticn of Article 10.1 in the Coilective Agreement? 3. Very clearly, therefore, the outcome of cases concerning events "beyond the control" of an employer will vary both with circum- stances and with agreement language. 4. The majority award states at page 5 that the language of Article 10.1 is simple, clear, and unadorned. The minority position would support this contention and would add further, as set out in the Brown Bogqs award ((1 L.R.C. 23 (Brady)) that when union and company representatives present conflicting intentions in an arbitration case, I, . . . . ..The Board is thus compelled to depend upon the actual wordsof the Agreement and interpret them as best it can . ...' ((1 L.A.C. 23 (Brady)) Moreover, Brown & Beatty at page 159 (Canadian Labour Arbitration) conclude from an analysis of Halsbury's Laws of England and re- lated jurisprudence that, 0 . . . . . . in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning‘of the Collective Agreement is to be sought in the agreement itself." (Canadian Labour Arbitration, Brown & Beatty - p. 159) Substantial support for the above finding may be found in Standard Coil Products (Canada) Ltd. (1971), 22 L.A.C. 377 (Weiler) and Burns Foods Ltd. (1973), 4 L.A.C. (2d) 4 (rjorman) . The intention of the parties, therefore, must be construed objectively and any assumption by the,parties or the aoard must give way to the ciear language of Article 10.1 of the Collective Aqreement. 5. The siqnificant languaq~e of the Agreement in this case is as foliows: II . . . . . . provided that no premium shali be paid where the change of schedule is caused bv events beyond the Ninistry's control." (underscoring added) -.. _, ..-.-. ~-~. 2. 3. Before pursuing this main issue, let us examine further the majority position which sets out that, "The purpose of a clause like Article 10.1 is to strike a reasonable balance between the interests of the em- ployer and those of the employees." Arbitral jurisprudence is cited to support the position that changes of shifts may cause premium payment to be paid to employees, as determined by circumstances and the language of the agreements between the parties. ((i.e. Re U.A.W. and Fruehauf Trailer Co. of Canada Ltd. (1969), 21 L.A.C. 138 (Simmons); Re Li.thoqraphers & Photoengravers Int'l Union and American Can Ltd. (1970), 21 L.A.C. 148 (Weatherill); Re Sisco Tubes Ltd. and U.S.W., Local 8341 (1977), 15 L.A.C. (2d) 99 / (Linden) 1 . Nevertheless, as stated by Brown & Beatty in Canadian Labour Arbitration (Pages 478, 479). numerous cases have resulted in no payment to employees when conditions have been beyond the control of management. II . . . . . .What constitutes an "emergency' or'circumstances beyond the employer's control' will vary with circum- stances in each case. Although usually connoting an unusual or sudden happening, or an unforeseeable occurrence, other circumstances, which may have been foreseeable, have on occasion, been characterized as emergencies. More- over, in determining whether the reason for the lack of work was beyond the company's control, arbitrators gen- erally inquire as ,to whether there was any fault or any omission which contributed to the unavailability of work. Thus where the cause can be attributed to a breakd,own of a boiler, a fire, a power failure, the cancellinq of an order by a sole customer of the production of a particular ~ shift, the negligence of an employee which led to a break- ~ down in machinery, a major mechanical breakdown, the loss of i its water supply, or to employees qoinq on strike or en- gaging in a slowdown, arbitrators have :held that the em- ployer was not responsibie for the lack of work and, accordingly, was not obliqed to pay the call-in quarantee. Conversely, where evidence is adduced to support the, conclusion that the lack of available work could have been foreseen or avoided by the employer, and in that sense was partiaiiy attributable to it, arbitrators have been relucta;.t' to conclude that the causes for the lack of work were beycnd its control." ((See pages 477 and 478 of Canadian Labour Arbitration (Srown & Seattyj for L.A.C. references.)) 4. It is the "events" which are beyond the Ministry's control. It is not the - "change of schedule" that is beyond the Ministry's control. In this case it was the absenteeism (the event) of Mr. St. Jean that was beyond the Ministry's control. He was entitled to the Bereavement Leave. He took it. In the circumstances, Management exercised its prerogative and adjusted the work schedule of Mr. Charlebois with 49 hours of notice. Both parties concur that Management has the right to change the schedule of employees subject to the provisions of Article 10.1. However, it is Management's contention that when the change of schedule is caused by events over which the Ministry has no control within the 72 hour period, that it has no obligation to pay time and one half for the first eight hours worked on the changed shift. This case clearly turns upon the grammatical construction of Article 10.1. "Beyond the Ministry's control" is a phrase which modifies and applies to the word "events". To accept the majority position the language of Article 10.1 would be required to read, in part, as follows: I, . . . . . . provided that no premium shall be paid where the change of schedule is beyond the Ninistry's control." Had this language been applicable in this case, Management would have been required to set out the factors which placed the change of schedule beyond its control if it were to avoid the payment of shift premi?lm as required by Article 10.1. The language of Articie 10.1, however, is not as set out above. - 6. To support its position of "plain meaning" with reference to the language of Article 10.1, the majority position states that, 5. II . . . . ..The clause (Article 10.1) provides for an exemption only for shift changes 'caused by events beyond the Ministry's control'. The only 'event' relied upon by the employer is the death of another employee's relative. Did this 'cause' the re- scheduling?" "We cannot find that it did....." But what else would have caused the rescheduling? . The majority position states further that, II . . . . ..We accept that the death, clearly beyond the employer's control, caused the vacancy on Mr. St. Jean's shift. It did not, however, 'cause' the shift change, which resulted entirely from a Management choice to use that method, of at least three alternatives, to cover the vacancy." What then, "caused" the shift change? Was it Management that caused the change in shift? Obviously not. Clearly, it was some "event" that was the causal factor. No evidence was adduced to the effect that Management carelessly or capriciously changed the schedule of the grievor. It was not the "change of schedule" as provided in Article 10.1 which was "..... beyond the Ministry's control". It was a "change of schedule" caused by an "event" which was beyond the Ministry's control. The word cause, therefore, does not stand alone, but must be read in conjunction with "events". Otherwise the phrase "by events" which modifies the verb "is caused", has no meaning. 7. The majority position also does not concur with the employer's position to the effect !I . . . . . that a decision in favour of the union would render the proviso to Article 10.1 devoid of content." and further, II . . . . . . We do not think.it would serve any our?ose to list the sorts of events which would be beyond an employer's control, although they are suqgested in the jurisprudence. But certainly there are any' number of events beyond the simple day-to-day operation of the leave provisions of the Collective Aqreement 'which would more reasonably attract the provision." 6. But what are they? .Are these cases where an employee reports illness on short notice; or when a union representative requests leave of absence on short notice? How should Management accomo- date these leaves in face &the majority position if premium payment is to be avoided? In view of all of the above, the minority position is that the subject grievance should have been dismissed.