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HomeMy WebLinkAbout1982-0078.Ferguson et al.83-03-24Between: IN THE MATTER OF AN ARBITRATION Under I TKF: CROWN EblPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mark Ferguson, etal) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: E.B. Jolliffe, 'Q.C. Vice Chairman I.J. Thomson Member N. Cazzola Member For the Grievor: J. Miko Grievance Officer Ontario Public Service Employees Union For the Employer: E.J. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: November 16, 1982 - 2 - DECISION In November, 1981, Mr. Mark Ferguson was serving as a Correctional Officer 2 in the Burtch Correctional Centre at Brantford. On December 10, 1981, he presented the following grievance: I grieve a violation of the current Collective Agreement in that I was declared surplus staff on November 11, 1981. The practise of scheduling days off is being used as a means to circumvent payment in accordance with the Collective Agreement and is an unfair l&our practise. The "Settlement Required" was as follows: I request that I be credited for 12 hours wxked of tiich 8 hours is to be taken in pay or accumulated lieu time at my option. I further claim the current commercial rate of interest ~1 any amount outstanding from the date of the filing of this grievance. * At about the same time three other officers, Ms. Joanne Walsh and Messrs. Tom Gawrylash and Larry Fitzpatrick presented grievances in the same language. After being pro- cessed, all four were referred to arbitration. - 3 - The grievances did not specify any provision of the collective agreement alleged to have been violated. It seems apparent that they had in mind Article 19, particularly 19.1 and 19.2, which provide as follows: 19.1 Where an employee works on a holiday included under Article 47, Holidays, he shall be paid at the rate of time and one-half (l-1/2) for all hqurs mrked with a minimum credit of seven and one-quarter (7-l/4) or eight (8) hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee shall receive either seven and one-guarter (7-l/4) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7-l/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. The background of this matter is that on October 1,4, 1981;Mr. H. Cornfoot, Senior Assistant Superintendent, issued a memorandum, Exhibit 4, to "All Staff --- Burtch C.C." stating that it was anticipated there would -be a surplus of staff on Rememberance Day, that anyone wishing to have the day off should contact his shift supervisor and that "if sufficient staff do not request the day off, some staff will have to be scheduled Off." He added: "This will be done in accordance with seniority Further, on 'October 27, Mr. Cornfoot issued another memorandum, this time addressed to the four grievors and two other officers, - 4 - advising that: "On the November 11th Statutory Holiday you will not be required to work. Your attendance record will be re- corded as an H.L. (Holiday in Lieu)." The four grievors worked on a rotating shift basis. Their regular shift at the time was days, i.e. from 8.00 to 16.15. Their claim really is tha't they are entitled to be paid as if they had been called on to work the holiday. At the hearing of these grievances it was conceded by Ms. Mike that Article 19 of the Collective Agreement does not confer a "right" to work on a holiday, but she argued that Mr. Cornfoot's memorandum of October 27 was contrary to Practice. Mr. Cornfoot's testimony was that the 1981 procedure had not been used in 1980. Ms. Miko said that to make such a drastic change, contrary to past practice, was "unfair." She cited C.N.R. v. Beatty et al s O.R. (2d) 385, in which an Ontario Divisional. Court upheld an award by Prof. David Beatty, which had been based on the doctrine of "estoppel by conduct." She said that McCormick 386/81 decided in May, 1982, 'by a panel of this Board (chaired by Prof. Barton) could be distinguished from this case. The apparent distinctions are that the McCormick grievance (also - 5- coming from the Burtch Correctional Centre) related to another holiday, May 18, 1981, and --- more important --- Mr. McCormick was not on rotating shifts but worked regularlyon days from Monday to Friday. It is conceded by the grievors that they were given adequate notice of the change in their schedule for November 11, as required by Article 10.1 of the agreement --- at least 120 hours, or five calendar days. It was conceded also that activities at the Centre on a holiday are not the same as on other days. Instead of the usual work projects, there would be sports' programs in both the morning and the afternoon, but there were fewer visitors on Remembrance Day than on other holidays. Mr . Ferguson agreed that salaried staff and others not on rotating shifts were given the day off. He agreed also that no one with less seniority than the grievers was working on the day shift November 11, which appears to be confirmed by the seniority list, Exhibit 8. Similarly, an officer named Howell, scheduled off from the next shift, had the least seniority in his group. The Burtch C.C. usually has about 225 inmates. In such an institution of course surveillance or supervision is required on a 24-hour basis. However, the officers' duties at - 6 - night are much less demanding than during the day. Mr. Corn- foot testified that seven officers are normally required at night, i.e. from midnight to 8.00 a.m., and 12 or 13 on each of the ,two shifts between 8.00 a.m. and midnight. Nevertheless, these num- bers vary, particularly on week-ends, which are similar to hol- idays in that they lack 'work projects requiring close supervision by officers. He had found that on Remembrance Day he would not need as many officers as usual. Apparently volunteers were lacking and he therefore decided to schedule the day off -- on a seniority basis --- for the four grievors as well as Mr. Howell. Mr. Cornfoot agreed: "I had never done this before . . . . . I talked about it with the Local President but I can't say whether it was before or after." The grievors have alleged a-violation of the collective agreement. We do not find any provision in the agreement which would bar management from doing what was done in connection with Remembrance Day, 1981. Article 47 provides that employees are entitled to 11 specified holidays in each year. One of those specified is Remembrance Day. There is nothing whatever in Article 47 to - 7 - suggest that an employee is entitled~~.,to work on a holiday if he wishes to do so. Article 19 makes it clear that if a Correctional Officer works on a specified holiday, he is to be paid at the overtime rate for all hours worked, with a minimum credit of eight hours, and in addition he is to receive either eight hours' pay or compensating leave. There are other provisions in Article 19, but nothing whatever to suggest that the employee is entitled to work on a holiday if he wishes to do so. In the absence of any contractual provision to support the claim, we are referred by the Employer to the provision in Section 18(11(a) of the Crown Employees Collective Bargaining Act making clear that it is for management to determine the comple- ment, assignment and scheduling of empl,oyees required for the work to be done. This is conceded by the Union, which however relies on what is termed the past practice at the Burtch C.C. There is nothing in the agreement or in the Act to require that management schedule employees in the same way in 1981 or 1982 as in 1980. The exclusive powers referred to in - 8 - Section 18 of the Act will necessarily be determined in differ- ent ways at different times and places, depending on the requirements of the work. As we see it, this is not an example of "estoppel by conduct" such as arc~se in,the C.N.R. case (supra). That case was decided in the private sector and had a very different set of facts. Moreover, much more than past practice must be established before estoppel becomes applicable. As for the McCormick case, decided by this Board, the facts were somewhat different, but the principle was the same as here, and we see no significant distinction. Moreover, with respect we happen to agree with what was decided in McCormick. It is perhaps superfluous to add that the obvious purpose of Articles 47 and 19 in the applicable agreement (and of similar provisions in many other agreements) is to enable employees (a) to enjoy a statutory holiday, if possible, without financial loss, and (b) if it is not possible to take the day off, then to be compensated by way of premium pay and another day off, or the equivalent thereof. It was never the design of - 9 - such provisions to guarantee that work at premium pay will always be available on a holiday. In summary, these grievances fail and must be dismissed. DATED at Toronto, Ontario'this 24th day of Marc ice-Chairman Member N. Cazzola Member EBJ:sol 8:2100