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HomeMy WebLinkAbout1979-0026.McGregor et al.81-09-30Between: -- Before: -- IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ilon McGregor et al GrieVOrS - And - The Crown in Right of Ontario (Ministry of Transportation & Communications) ElllplOyeZ R. L. Kennedy Vice-Chairman D.~B. Middleton Member G. Beaulieu Member For the -Griever: L. Stevens, Grievance Officer Ontario Public Service Employees Union For the Employer: G. Stewart, Bead, Personnel Services Ministry of Transportation & Communications Hearing: -- September 3r3, 19Sl -2- AWARD The matter before this Board is a group grievance of 20 employees of the Ministry of Transportation & Communications in Chatham, Ontario, which grievance'was dated December 28th, 1978. The alleged violation on the part of the Employer reads as follows: we, the undersigned, grieve that Management‘ violated~Article'l0 of the Working Conditions Agreement by refusing to pay time-and-a-half after receiving less than 72 hours notice on a shift change dated November 28, 1978. The particular section of the Collective Agreement referred to in the grievance reads as follows: ARTICLE 10 - SHIFT SCHEDULES 10.1 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 (1%) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the Ninistry's control. The parties are substantially in agreement as to the background facts giving rise to this grievance. The employees in , question are engaged in the maintenance and repair of the highways under the Ministry's control in the Chatham district.' During the Spring, Summer and Fall months, the bulk of their duties relating to the maintenance and repair of the highways are .s> --=‘- -3- performed during normal daytime hours. During .the Winter months, however, the inherent nature of.the Winter maintenance proqram requires what amounts to 24-hour-a-day l-day-a-week wor?k availability to deal with snow removal, sanding and salting and such repairs as are required during the Winter. There is, therefore, a significant difference in the basic shift scheduling when the Department moves into its Winter maintenance program. The total personnel employed during the Winter is approximately twice the complement employed during the Summer, and these seasonal employees are taken on from the date the Depar'Jnent decides to introduce the Winter schedules. A representative of the Union with 19 years' service indicated that, in earlier years, the usual period for the Winter program was November 15th to April 15th, but that more recently the changeover took place as close as possible to the first pay period in December. In the year 1978, the Emcloyer reached the decision to intro&Jce the Winter works maintenance schedule as of December 4th, and the appropriate work schedules were posted in advance of that date as required by the Collective Agreement. ‘Prior to December 4th, ali of the Grievors were scheduled to work regular day shifts. On the morning of November 27th, 1978, there was a snow storm in the Chatham area, and the District Engineer received the weather forecasts from Environment Canada indicating sncw with accumulations of from 9 to 12 cm. with blowing and drifting. The forecast indicated a possibility of those conditions continuing throughout the week. It was the evidence of the District Engineer that, based on the storm that was being experienced at the time i and the weather forecasts, he decided to advance the Winter maintenance schedule to the next day, November 28th. It would appear that that decision was made prior to 10:00 a.m. and was immediately conveyed to the employees. As a result, the grievors were required, on November 28th, to work a night shift commencing at 9:00 p,.m. on November 28th; whereas, under the prior schedule, the Grievors had been scheduled for a normal day shift on Nove.mber 28th. Other materials filed with the Board would confirm that on November 27th and November .28th, roads in the Chatham area were snow covered and slippery with salting, sanding and plowing operations being carried on, and these facts are further confirmed by the Department patrol logs for those two dates. The evidence of the Union indicated that, in prior years, when there had been snow prior to the commencement of the Winter works schedule, its was handled by existing personnel with resort to overtime shifts where necessary. It was the evidence of the District Engineer that when he made the decision to advance the Winter works schedule, it was his opinion that he would not be able .to maintain the roads without qoinq to that schedule because; based on the forecasts, he was looking at four days of stem conditions. He felt that, in those circumstances, he would need the additional seasonal personnel in order to operate all of his equipment and that it would have been very hard on the reg*ular staff if they had to do it all. Be stated that he considered there to be a risk to the general. public in the adequacy of maintenance if he did not advance the entire schedule. In cross- examination, he agreed that the purpose of the Winter schedule was to recognize the primary consideration of dealing with weather -4- -5- conditions and that it was a judgment call when the Department would move to the Winter schedule. He was of the opinion that it would have been less expensive to deal with the November 27th situation through overtime rather than advancing the schedule. 1n his experience, he stated that he had never before been faced with a forecast of the nature he received November 27th prior to the implementation of the Winter schedule. Clearly, on the agreed facts, the shift schedule was changed on November 27th insofar as these Grievors are concerned without the requisite notice as specified in Article 10. They are, therefore, entitled to be paid time and one-half for the first eight hours worked on the changed shift unless the situation comes within the single exception referred to in Article 10, namely that the change of schedule was caused by events beyond the Ministry's control. The meaning and application of that limitation has previously been considered by a panel of this Doard under the Chairmanship of Professor K. P. Swan in Charlebois 168/77. In that Award, Professor Swan reviews, in our view correctly, the principles applicable to the ~ application of the section and concludes that what is beyond the Employer's control must be interpreted in the light of what is foreseeable or may be provided against. In his view, a failure to make reasonable provision to meet contingencies without having to alter shifts on insufficient notice, is not a matter that is beyond the Employerls control. In the alternative, he focused on the aspect of what had caused the change, and he concluded that, where theYchange resulted from a management choice of method in / dealing with the situation, it could not be considered to have been a shift change caused by scm'ething that was beyond the -6- Employer's control. We consider it appropriate to adopt Jrofessor Swan's reasoning both, on the basis that it is a prior award of this Board on the same issue as is presently before us, and also on the basis that we are in agreement with the reasoning used therein. In considering the factual situation that is before us, it is clear that the scheduling for Winter maintenance within the Ministry must, by its very nature, make provision for events that are sporadic, random and unpredictable as to time of occurrence. In setting that scheduling, the Employer is obviously aware that snow storms can occur in November and that, when they do occur, certain work will have to-be done. In deciding when the full Winter maintenance schedule be implemented, the Employer is making a management decision and must be fully aware that, in the event of a snow storm earlier than that date, other steps will have to be taken to meet the condition. Put another way, the occurrence of a snow storm in November is specifically one of the eventualities which the Employer must take into consideration in determining its scheduling and, in the context of an operation whose principle function is to deal with the occurrence of snow storms, the occurrence of such a storm must reasonably be provided for. In the context of Article 10, we believe that what is being focused upon is what is within the Employer's scheduling controi as opposed to his physical control. If the Employer's position that a snow storm takes.a shift change outside of the provision of Article 10, then the logical extension of that principle is that, throughout the Winter, the Employer would be entitled to do all \ of the scheduling on a totally adhoc basis, strictly in response to weather conditions as they inay be from time to time. On the alternative argument advanced by Professor Swan in Charlebois we would note that, in the past, this Employer has met early snow storms through the use of overtime with existing personnel. In these circumstances, the Employer considered that a shift to the Winter maintenance schedule was a preferable method of meeting the situation, but the fact remains that the alternative of working within the existing schedule was available. In addition, the Employer's evidence indicated that a substantial portion of the work force on the Winter maintenance program comprised seasonal personnel who, as a group, possessed the necessary skill, training and ability to perform the various functions required. Since these people were obviously available as of November 27th to commence the Winter maintenance'schedule, presumably they would have been equally available to be called in early and assigned to specific duties, if necessary, without upsetting the posted schedules. It would therefore appear that the change in shift schedule did result from a managment choice as to the method to be used in meeting the early snow storm. No one questions the Employer's right to select which method will be used but, having made that selection, it is only reasonable that the Employer incur the economic costs provided in the Collective Agreement for whatever changes result. - 8 - It is therefore our conclusion that the grievance must be allowed. We will remain seized on the aspect of compensation should the parties not be able to agree upon same _ DATED at Toronto this 30th day of September, 1981. R. L. Kennedy, Vice Chairman "I dissent" (See attached) D. B. Middleton Member G. Beaulieu Member DISSENT OPINION *: 26/79 - O.P.S.E.U. (,Nr. D. .WGregor et al) and Cru.m/Gntaxio (Ministry ofllransportation andGmmmications). I have availed myself now of the cpportmity of rereading the inajority award in the above case before our Board, and the prior Charlebois Yajoriiy Award (168/77) on which it is founded, and the dissenting opinion of Yr. F. Collictappended thereto. I regretfully cannot ccncur with the mjority Charlebois award or the instantone,and~rrereadingofbothhasrrerelystrengthened~~~cticn that in each case the responsible arbitrators have applied meanings aad appraisal mnsideraticns to the 'siaqle clear language' of Section 10.1 of the then current contract which puts an unjustifiable interpretative strain on the prinnq negotiated intent of the parties in that Section as e.qxcessed in the words and phrases they used. In short, it would be q estkrate that those who actually first negotiated Section 10.1 would find these two awards an inaccurat2 and faulty re=ection of what was in fact discussed by eqle at the bargaining table, Ird a travesty of the reality of tie agreeznt then reached. Certainly in end result the olarlebois majority and my colleagues oh the Byrd have prog-feskvely emsculated the right of the Ytis'iry to institute without preen penalty a shift change in line with the proiqting factors set~out in this Section 10.1 under review. \ Ihe Ci-mrlebcis 24ajority Board obviously foresaw Clat rigid adherence by another or other Boards tc its logic axld help if not briag to pass, a ffintition khereby 10.1 is nullified and becomes demid of its natural aeaning by the arbitral process, and this is well illustrated by the foilcGng direct we frcn Page 7 of that award: I "%e enployer's argcmnt suggests that a decision in favxr of the unicpI would reader the proviso tc Pticle 10.1 dewid of conteat. Ne dc not agree. Vie do not think it would serve any purpose to list the sorts of events tiich riculd be beyond an exployer's control, although they are suggested in the jurispmdence. But certainly tkre are any nmber of em-As beyond tile s&&e day-%-day cperaticn of the leave p?sxisioa;-s of the coLle3ive agreenentkhici xould mre reasonabiy attract the pzovisicn" . . . . . . 2 . . . . . 2 SWely this Was the occcion to callahalttien ny COlieapS decided that an unanticipated snmstorm of several days duaticn was not 5j all intents andpurpses the single eventwhich caused the decision by Managemsntto advancethewizter roadclearance schedule fmmthe previously posted date of Dscmker 4th to November 28th, 1978. In so doing, the majority of this ward concluded that the sncmstom~was an eventwithin the controlofthe ,tistry since the mnamthadot!!er i7b3anS available to it of aping with the situation. These judgenatal amsideratims are extraneous if not mtirary to the complace rremingof the language oflO.l, and a=pesr tom tote a dangerous misuse of arbitral discretion and pz+er;'since, without any v&al or other te.xtual supgrt in the Section (lO.l), the mjorit-1 of t3.k Boardhas re'croacti\~ly taken over the function of the :&nagemmtard decided what should have taken place to cqe with the exrgent sr.cwstom. 'Ihe em3 paragraph of page 7 of the award of q~ colleagues ilkstrates IAe incongrwus end result, and the Enployer is required to acknowledge the sqeriority of the arbitral judgerent call as to what should have hamed, and incur the ecOnOmi c asks of its failure by payiig the grievers an cverti~e pen&W. This Fagraph S&X&S for itself a?d. follows: "No one questions the Enployer's right to select whic5 nethod will be used but, k&.ng mde that select&?, it is only reascmble that the Fmployer incur the eamaaic costs provided in the Collectim Agreement for whatever cdnges result." 'Ihe insertion into the te.xt of 10.1 by two suzcessi\e Wards 168/77 and 26/79 of arbitral decision mkizg -qwers to replace if necessary the employer's right to make the jtiwent call and change shi5t.s ,&hen t;Je nature of tie event narrely 'beyond his control' warza&s it my wdl constitute an excess of jurisdiction under Section 27.12 and it is ny view Clat 10.1 has keen 'enlarged' by both Ecards. I doubt whether this Eoard needed to follcw ti tk fcut+ep of the Czlfbois ,mjoriQ and new await an event or events which will restore life to tie ortiaxy rreaning of the 10.1 as ;legc tiatedwiti cmsiderable curiosity. . . . . . 3 . . . . . 3 In light of the above, the minority psition is that tk svbject qrievancas sho~ldhave ken dismissed. F&pactfully satted, D. B. Middleton, ~N.wker.