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Home My WebLink About1980-0080.McKie et al.81-02-17Setween: Before: IN THE MATTER OF AN ARSITRATION Cnder The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Refore THE GRiE'VAirif SiTTLMENT BOARD For the Grievor: For the Employer: Hearing: W. R. McKie et al - And - The Crown in Right of Ontario ,(Ministry of Transportation and Communications) E. E. Palmer, Q.C. Vice Chairman A. Stapleton Member J. il. McManus Member Mrs. L. Stevens, Grievance Officer Ontario Public Service Emplo!jees L’nicn Mr. N. Pettifor Ministry of Tranportation and Communications January Zith, lg81 A 3 A R D ----- 2. The present arbitration arises out of a claim by the grievor in this matter, Mr. McKie, that he be given time off with respect to time he spent at a grievance meeting held Fursuant to Article 27.3.3 of the Collective Agreement in effect between the parties. This matter was not settled during the qrievance procedure and so forms the basis of the presen~t arbitration. At the commencement of the hearing, an agreed statement of fact was provided to the Board. It need not be repeated here, however, as the facts in this matter are straight- forward. Thus, during the processing of another grievance by Xr. McKie, .a meeting was scheduled on 13 December 1979 by the Empioyer relative to this grievance. This particular day, which was a week day, coincided with a scheduled day off for the griever and so his attendance at this meeting result~ed in him having to use ihis own time for attendance. As he was not paid for this time, the instant grievance was'filed,,claiming the relief noted above. Before turning to argument in this matter, it is useful to set out the Collective Agreement provisions which were argued. by the parties with respect this case. These were: ARTICLE 8 - DAYS OFF 8.1 There' shall be two (2) consecutive days off which shall be referred to as scheduled daysoff, except that days off may be non-consecutive if agreed upon between the employee and the ministry. ARTICLE 27 -' GRISVA?ICS PROCEDtiRE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complair,ts or differences between the parties arising from. the interpretation, application, admin- istration or alleged contravention of this Agreement, including any guestion as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the con- plaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 27.2.2 If any complaint or difference is not sat- isfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (101 days in the foliowinq manner: 27.3.1 STAGZ ONE ' The employee mav file a grievance in xriting with his supervisor. The supervisor shall give then griever his decision in writinq within seven (7) days of the submission of the grievance. 27.3..2 STAGE TWO If the grievance is not resolved under Stkqe One, the employee may submit the grievance to the Deputy~Minister~ or his designee within seven (7) days of the date that he received the de- cision under Stage One. In the event that no decision in writing is received in accordancew with the specified time limited in Stage one, the grievor may submit the grievance to the Deputy Minister or his designee within se':en (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. 27.3.3 The Deputy Minis.ter or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and.shall give the grievor.his decision in.writing within sevens (7) days of the meeting. . . . . . 27.7.1 27.7. 27.7.3 . ,. . . . 27.9 Where a grievance is not ,processed within the time allowed or has not been orocessed by the employee or the Union within the time prescribed it shali be deemed to have been withdrawn. 27.10 . . . . . . . 27.12 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. 4. An emph‘yee GIhG iS a griever or complainant and who ma!-es application for a hearing be- fore the Grievance Settlement Beard or the Public Service Labour Pelations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of creidits, if required to be in atten~dance by~the Board or Tribunal An employee who, has a grievance and is re- quired to attend meetings at Stage One and Two of the Grievance Procedure shall be given .time off with no loss of pay and t;ith no loss of credits to attend such meetings. This section shall also apply to the Union Steward who is authorized to represent the grievor. .In this Article, days shall incltide all days exc~lusive of Saturdays, Sundays and designated holidays. The essence of the grievor 's case in this matter is that he was treated unfairly pursu*t to Article 27.7.2 of the Collective.Agreement. Put another way, it was his view that the import of ,this clause is that when he was required to attend the Stage 2 grievance meeting, he should do so without any "loss of pay" or "credits". Further, ,it.is his contention that the act of the Employer in this regard constikutes a form of intinidaticn 5. and discrimination against him, Thus, Xr. ?kKie's argument is that pursuant to Article 8 of the Collective Agreement he is entitled to two consecutive days off, during which he would not be required to work. In the instant case that right was infringed and he received no compensation for it. The effect of this, to his mind, was that he W&S being discriminated against contrary to section 27 of the Crown Employees Collective Eargaining Act, 1972, Stats. Ont., 1972, c. 57 (as. am.), which indicates that no person acting on behalf of the employer is to interfere in the administration of the collective agreement. Of course, it is his view that this "intimidation" flows from the fact that he gains no compensation in these circumstances. In essence, then, the position of the griever is that the vast majority of employees in the bargaining unit pork during normal week days and that the procedure here followed would be suitable for them, but not for him. Thus, counsel reviewed the .Act to indicate that this was the underlying assumption of provisions set out above and, by scheduling the matter contrary to the situation which would apply to all other employees, there is a breach from normal practice and a consequent disincentive to the griever to pursue his grievance. : Counsel for the Employer takes the position that fhe Collective Agreement cannot bear the interpretation attempted to be placed on it by the grievor. In this regard, the language of :; 6. Article 21.7.2 was analyzed. It was noted that :.rhere t:-.is cla:~se comes into effect is where an employee would otherlwise be worXLny during the time of a Step 2 meetinq. 1n these sitsations, it is the view of counsel for the Employer that the Employer is rec,uired to give time off to the qrievor to attend this meeting and that he be paid for this., As well, absence for such meetings cannot be used by the Employer to limit credits whit:? would have other<wise been gained by the grievor. Presumably, this refers to matters of seniority, vacation entitlement and the like. Further comments were made that as the qrievor did not fit under this clause and there was no other ciause dealiny with compensation, the grie:iance should be dismissed. Fut another way, the argument of the Employer was that the parties, having put their mind to the question of compensation under Article 27.1.2, it should be assum,ed ..t:nat this -<as exhaustive of any rights with respect to that matter. I;nus , it xas urged thatthe Board is not in a position to either alter the clear intent of this clause or add an additional clause. Having considered the arguments of the parties, it is the view of this Board that the grievance be dismissed. In t h i 5 regard, % agree with the position put forward by the En?loyez regarding Article 27.7.2. Quite clearly, the meaning of this clause is that where a grievance meeting is scheduled during times when .the yrievor is scheduled to work, the Employer is required.to permit him to attend this meeting, pay him for the time while he is so enqayed, and, finally, treat the time when A 7. for vacations and the 1ik.e. kjain, k.:3.Jinq set oi;t t.-,is re,2-irfi-ErJt for paliment, there is no obliqation for the Deployer to c;o f:2rther. The essence cf the qrievor's case xould seem to lie in the requirement of the Employer to schedule meetings during normai working hours for at least all of the employees involved in the .~ grievances that are covered by the Collective rlgreement. :-, e r, r .A s a 1 of the Collective Aqreemcnt fir.ds no provision to this effect. I;! the opinion of the Dcar.d, this is understandable as cne vast majority of members of the bargaining unit and undoubtedly manage- ment work a normal work week betz,ieen >.londay and Friday and qrie;-ante meetings would ,be scheduled at that time. Thus, the instant situation would be unlikely to arise. Unfortunately, it did in this case and the griever is bereft of any remedy. Put anot;:--- -2. way;- the time of scheduling meetings appears to 'be zn oversig11t in the Collective Agreement. Cne would hope, therefore, that the problem could be addressed in the next period .of barqaininq between the parties. ../. For the above reasons, then, this grievance is dismissed. DATED~at London, Ontario, this /?qay 03 February, 1961. : I & -2. E./Palmer, 0.C. I concur/cat DATE OF ISSUE: Narch 6, 1081