HomeMy WebLinkAbout1982-0081.Brunelle.82-08-25IN TREK MATTER OF m ARBITRATION
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TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Grievor: G. Richards Grievance/Classification Officer
Ontario Public Service Employees Union
Between:
Before:
OPSEU (Clermont Brunelle) Grievor
- And -
The Crown in Right of Ontario
(Jiinistry of Health) Employer
R.W. Ianni, Q.C. Vita Chairman
T. Traves Member
D.B. Middleton Uember
For the Empiox: J. Callas Regional Personnel Administrator
Uinistry of Health
Hearing: June 21, 1952
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DECISION
The griever, in a grievance dated December 22, 1981, alleges "the
violation of Article 4 of the Collective Agreement in that the employer
has created.a new bargaining unit position without conducting a competition".
The griever commenced employment with the Ministry of Health on the 25th of
September, 1961 and is currently employed as an Industrial Officer I
in the Oak Ridgesection of the Ministry's facilities at Penetanguishene.
Article 4.1 of the Collective Agreement provides as follows:
When a vacancy occurs in the Classified Service for a
bargaining unit position or a new classified position
c
his created in the bargaining unit, it shall be advertised
for at least five (5) working.days prior to the established
closing date when.-advertised<within a ministry, or;it
shall be advertised for at least ten (10 working days
prior to the established closing date when advertised
service-wide. A31 applications will be acknowledged.
Where practicable, notice of vacancies shall be posted
on bulletin boards.
In a meeting called by the employer oo November 3, 1981, union representatives were
informed that'there was to be some reorganization in the Hospital Services area
of the Penetanguishene institution. It was indicated that the Eospital
Services Supervisor's position, which had been the.subject of a decreasing
workload, was to be redesigned to that,of Codrdlnator of Hospital Services (Industrial
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Officer II). In the-view of the union this was an attempt on the part
of mansgement to avoid posting the Industrial Officer II job vacancy fdr cometi-
tion. .The Uniooxas concerned that promotional opportunities.would thus.
be denied to those currently holding the Industrial Officer I positions.
Subsequent to this meeting, the O.P.S.E.U. Local 307 presented an
alternative solution which involved combining the Hospital Services Supervisor
and Rehabilitation Officers duties as well as promoting one of the current
Industrial Officers I to the position of Industrial Officer 2 in charge of
the ball shop. In addition it was suggested that one more Industrial
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Officer be hired to replace a Mr. Brock who had been promoted to
management.
Mr. T. W. Knight, Director of VocationQRecreational and Volunteer
Services for Oak Ridge examined the proposals made by the union H:oweveq he
remained convinced that the original proposal of management was the least
disruptive to both patient programs and staff involved in the workshop
areas. Ultimately, Mr. McKerrow, Administrator, informed the'president of
O.P.S.E.U. Local 307 - Oak Ridge on November 23, 1981 that the changes originally
proposed by management were "precipitated by the current constraints 'the hospital
( is facing and a realization that there was some restructuring required in
the Vocational Services department. Specific cause (sic) was the diminished
responsibility in the Hospital Services area and it is appropriate at this
time to realign this function and to add responsibilities to it. The
proposal we put foward had the added advantage of decreasing the requirement
of one occupational instructor in that area. The negative aspect was that
there would be a displacement of the least senior occupational instructor -
Mr. Dan LadoucBur;"
Mr. McKerrow further indicated that the management had considered the
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proposals suggested by the'inion and forwarded a copy of Mr. Knight's
analysis of those suggestions. Management concluded that Mr. Knight's analysis
provided good and sufficient reason why the proposals put forth by the
union were not acceptable. Finally, given the lapse of time, Mr. McKerrow
decided that it would be appropriate to proceed with the management's
proposal as initially outlined and Mr. Knight was instructed to implement
the management's proposal as soon as the occupational instructor,who was
currently on sick leave, returned. In view of the importance of the assessment
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of the union's proposals made by Mr. Knight, it is set out in full below
the contents of the men&o dated November 13, 1981 from Mr. Knight, Director
of Vocational, Recreational and Volunteer Services to Mr. McKerrow,
Administrator of theOak~Ridge facility.
I have reviewed the proposal from the O.P.S.E.U. local #307
concerning an alternative to the proposal I put through recently
on reducing compliment in Oak Ridge, Having done so I do not
feel that their proposal is desirable nor do I feel it alleviates
the problem of displacing an employee already working in.
Vocational Services. I will comment on each of their three
recommendations in the next few paragraphs.
RecorrrmendationBl: ,"Combine the Hospital Services Supervisor's
.and ~Rehabilitation Officer's duties." In the past the department
has been accused of being too production oriented and not treatment
oriented in the operation of the Oak Ridge workshops. J have
attempted to alter that perception by emphasizing the need for
formal vocational assessments., the development of individual
treatment plans and establishment of good levels of communication
with the wards. This‘was partially accomplished by the introduction
of the Rehabilitation Officer to Oak Ridge. The Rehabilitation
Officer is the only person who does not have some responsibility
for production and can therefore balance any pressure felt by
either the Supervisor of Workshop Services or the Supervisor of
Hospital Services. Additionally there is only one Rehabilitation
Officer for approximately 100 workers in Oak Ridge. One~person
could not handle that case load in addition to the duties of
Supervisor of Bospital Services. - Finally I would like to point
out that combining the two positions still results in one staff
member being surplus. The local 307 proposal makes no mention as
to what the alternatives would be for either of the two imcumbants.
Recommendation 82: . ..promote an Industrial Officer 1 to an
Industrial Officer 2 position in'charge of the Ballshoe. Although
I have no objection to this suggestion it does not solve the
problem of reducing compliment.
Recommendation 83: . ..hire an Industrial Officer 1 to replace '
Mr. Brock who has been ] promoted to Management. Mr. Brock has been
excluded from the bargaining unit but that does not create any
vacancy. The total number of Industrial Officers remains the same.
I am still concerned that if staff must be cut my original
proposal is the least disruptive to both patient programs and staff
involved in the workshop areas.
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The position of the union is simply that the actions of management
in this particular context constituted the creation of a new position in
the bargaining unit which was filled by management without following the
requisite procedures set out in Article ~4.1 of the Collective Agreement.
It is their position that there is a sufficient change in the responsibility
of the position in question to constitute, in effect,.a new position rather
than a reclassification of an old position.
On the other hand, management maintains that its decision to reorganize
the Vocational Services unit of the Mental Health Center were in accordance
with Article 18 of the Crown Employees Collective Bargaining Act, S.O. 1980,
Chapter 108. In essence, the actions of the management involved the
reclassification of the Supervisor of Hospital Services into that of
Coordinator of Hospital Services, Oak Ridge. In their view, there is no
creation of new position but rather reclassification of an old position
and therefore no violation of Article 4 since such reclassification was
taken in accordance.with the provisions of Article 5 of the Collective
Agreement. At the request of the panel, management submitted an
organizational chart setting out the organiiational structure of the Oak
Ridge facility prior to the fall of 1981 and a further chart setting out
the organization as of December 8, 1981.
The following chart would represent the organization of personnel in
the Oak Ridge facility prior to the reorganization of the fall of 1981.
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ECIIBIT 6
I
I Supervisor, Workshop
Services (Oak Ridge)
Wm. Leclair Cleaners
Painters
Co Ward Workers
Typing 6 Printing (3)
Canteen Operatbrs (2)
7 Incumbents Ward Teachers
including Front Office Worker
Mr. Brunelle. / Laundry
/ / /
4
* Copeland supervises
Work Areas ' CY- 3'typing and printings
, '-as0 and 2 canteen operators
skid shop (Ladouceur) ,_ ,",&"" and for the other
‘ categories he gives
Refinishing Shop /",& #J direction to staff
i Upholstery Shop + @
Ball Shop (Brunelle) ' 4 $..
who are responsible
'+ * and they report to him
Laundry e- - - --' ais
.
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The following chart represents the organization of personnel in the
Oak Ridge facili ti after the reorganization became effective on December
14, 1981.
EXHIBIT 7
i
T. Knight
I
Supervisor of Workshop
and Hospital Services
.I. Brock
I
Coordinator of
Workshop Services
Wm. Leclair
‘-1,
P. Copeland
Workshop Instructors I
6 incumbents
including Brunelle
(Ladouceur of the Skid Shop
reassigned to the Ward)
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The Position Specification and Class Allocation Form for the old
position of supertis~r of Hospital Services, Oak Ridge indicates the
following:
Purpose of Position
To organize approximately 35 patients involved in hospital services
prograsmva in a maximum security setting; being aware of potential
security and safety risks and with direction from the clinical
teams to assist staff in maintaining a therapeutic milieu with
patients assigned to their particular work area.
Summary of Duties and Responsibilities
1. Ensures maintenance of therapeutic and security aspects of
programmes by: conducting weekly meetings with the work area
supervisors to discuss any related questions such as, progress of
patient workers and.recommending needed changes to be instituted
through the clinical team; ensuring completion of weekly patients'
evaluation forms and rating same; ensuring that sufficient number
of patient workers are available regularly in all work areas by
checking with section supervisors and department heads; ensuring
that patient workers' payroll is submitted to the Industrial therapy
Clerk each week; ensuring proper functions of auxiliary areas
such as canteen; maintaining a very close contact with all
matters related to security and reporting any potential problems
to supervisor or chief attendant. (45%)
2. Assists supenrisor and related personnel in providing a
rehabilitative function by: adapting standard work areas to best
serve rehabilitative needs; meeting with supervisor and related
section heads to discuss departmental problems and to make
appropriate recommendations; assisting with in-service training
dealing with pertine~nt programme modifications by conveying
methods of rehabilitation to subordinates and co section heads,
e.g., Administrator, Food Services. (25%)
3. Acts as liaison between clinical team and hospital industries
by: upon request, providing written progress reports on individual
patients to clinical team; discussing with supervisor and supervisor 1
of counselling referrals made by clinical team and taking appropriate
action as indicated. (15%)
4. Supervised subordinate staff by performing tasks, such as:
assigning work and instructing and guiding in satisfactory
performance as required; assessing performance; granting days off;
recommending merit increases, disciplinary actions, etc. (10%)
5. Performs other related duties as assigned. (5%)
RRCO"MENDED CLASSIFICATION: INSTRUCTOR-3-OCCDPATIONAb
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Skills and Knowledge Required to Perform the Work
Grade 10 education, preferably grade 12; successful completion
of &he Psychiatric Nursing Assistant Course or the Occupational
Therapy Assistant Course with one year of experience in a
psychiatric setting;,or the equivalent of the
At least two year's experience in a therapeutic industrial
workshop or an acceptable equivalent combination of formal
training and experience; supervisory ability; knowledge of
security aspects at working in maximum security area by in-
service or equivalent.
Class Allocation
Attendant 4, Oak Ridge (atypical).
/ The new position involved in the reorganization is that of Coordinator of
Bospital Services, Oak Ridge and the,,Position Specification and Class
Allocation For-m indicates the following:
Purpose of Position
To assist with the supervision and coordination of Vocational
Services programmes by providing and coordinating work activities
and work assessments for approximately 50 patients involved in
various hospital services and workshop programmes in Oak Ridge.
Summary of Duties and Responsibilities
1) Ensures maintenance of therapeutic aspects ~of work prograrmaes
by:
- meeting regularily with work supervisors and instructor to
! discuss patienfirbgrams and progress.
- ensuring completion of patient work assessments and weekly work
evaluation forms.
- ensuring that a sufficient number of patient workers are available.
for the different work areas.
- adopting work areas to.meet the rehabilitative needs of the patient:-
developing and following patient treatment plans in the various work
areas.- placing regular patient progress notes on the clinical record.-
checking work performed to ensure it meets required standards -
demonstrating work methods to patients, instructors and work super-
visors .- acts as a liaison between various work area, wards, and
patient clinical,teams. (50%)
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z)** Ensures maintenance of a maximum level of safety and
security by:
-carrying out ongoing security checks of patients and areas
assigned; - supervising patients known to be capable of harming
themselves or others; - frequently checking work areas, windows,
bars, screens;doors, gates, tools and equipment to ensure they
are secure and accounted for at all times.
- using discretion when handing out tools or assigning equipment
on jobs, being certain that the patient is capable and stable
enough to handle the job. - supervising patient movement between
wards and work areas, between work areas, and through re,lated areas
throughout the hospital. Pm
** Incumbent must maintain security vigilance 100% of the time. In
this position the 20% time allocation should not underscore the
extreme importance of this key duty.
3) Supervises assigned staff by performing tasks such as:
- assigning work
- Instructing and guiding staff in operating various patient
work areas.
- assisting staff with the development of patient programmes,
assessment techniques and work evaluation systems. (20%)
Performs other related duties as assigned. (10%)
Skills and Knowledge Required to Perform the Work
Proven experience in a workshop setting in a psychiatric facility
or similar institution. A good working knowledge of the principles
of vocational assessment, evaluation and rehabilitation is
essential as well as a good working knowledge of maximum security
procedures normally gained by at least several months experience
working in Oak Ridge.
Class Allocation .-
Industrial Officer 2 (atypical)
As will be seen from the above charts, Mr. Copeland was changed from the
' positionof Supen&nrofI&pital Services to Ccord3natnrofZospital
Services, Cak Ridge, and Mr. Brcck's position ~3s reclassified to Supervisor
ofWnrkshopand&xpital Services. In addition to the reclassification
for Mr. Bnxlc ar&M.r. Copsland,Mr.Brunelle,wfiowas in the Ball Shop,
was transferred to the Skid shop ard~r.Ladouceur, whowas in the
Skid Shop, was reassigned to the Ward.
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The transfer for the griever Bronelle in~?>l~,@ t.&& :;jfiich eere Very
similar and in fact there was no change in his classification. Mr. Brunelle.
as Industrial Officer I, continued in the assessment of the work of the'
patients and was involved in an incentive lzz&- system for them,& Xws
also responsible for security. Mr. Copeland, since the reorganization,
continues to carry out his previous duties; whidn~~ a portion %&is
time, and at the same time is required to attend a certain number of meetings
associated with his new position.
There is a history to the classification of employees in the Workshops
in the Oak Ridge facility, with the matter tit.jmately being referred to the Civil 1
Service Commission.. It was decided in 1975 that it was better to reclassify
those positions in the Industrial Officer series, the classification used
in the Correctional Services Ministry. This was done for all employees in
the Workshop area. Eiowever,it was not done in the Hospital Services area
where Mr. Copeland had major responsible for pdacing~patients.
Once again it will be appreciated by referring to the first organizational
diagram that there were five Workshop areas under Mr. Brock's jurisdiction.
However, the Laundry, which was under the jurisdiction of Mr. Copeland, was .-
transferred to Mr. Brock's jurisdiction.
Mr. Brunelle was in charge of the Ball Shop and there were two Industrial
Officers with equal responsibility in his area. However, all of the nine
Industrial Officers could be changed into five Workshop areas.
There was some confusion about the position of Mr. Brock. It was
alleged that he had been promoted as a result of the reorganization, when in
fact the reorganization did not involve a promotion for him, but he had,~
prior to December 1981, been excluded from the bargaining unit because of
his functions and this bore no relationship to the reorganization. Indeed,
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the reorganization brought about a change in Mr. Brock's title from
Supervisor of Workshop Services to Supervisor of Workshop and Hospital
Services, and Mr. Copeland then reported to him. As a result of the
reorganizatioq,however,Mr. Cope&d was reclassified from Attendant IV,
Oak Ridge to Industrial Officer II, which resulted in a 3~ per hour increase.
It is also appreciated from the diagrams above that there are two
general areas in the Vocational and Rehabilitation Unit. One ,is the
Workshop Area and the other jn .&e a@m ,-es a~. in & of tr,-
areas there is a distinct type of work activity. For example, in the Workshop
i area the activity is similar to that of a small factory, &,r+rezha jn t&
Hospital Services areas patients perform functions for the Hospital such as
housekeeping, kitchen, laundry, etc. All new patients ?are given a clinical
assessment and then assigned either to a Workshop or a Hospital Services
area. The work activities in each of these areas were placed in a different
setting. On&a patient was' assigned, an assessment would take place
approximately every three weeks to a month, which would result in having
the patient return to the Ward; to some other type of program recreation;
or to further programning in the Vocational Services area. The Workshop
._
i Instructors~FartoftheassesslEntprocessaJxittleirr ecQrmenaations
WUd h lmd.2 t0 thS psychiatrist who lkid ulizinP.2 rt2sponsibility 'for -
developinqthe trentrnnntplan.
The old position of Supervisor of Hospital Services occupied by
Mr. Copeland was responsible for the operation of the work programs of the
patients assigned to provide Hospital Services such as kitchen, cleaning,
painting, etc. At a beak period there were as many as sixty patients
involved in the Hospital Services area. However, this number declined to
about thirty-three just prior to the reorganiiation in December of 1981.
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In addition, patients were assigned directly to provide service to areas
where, in fact, there were full time staff involved. Mr. Copeland had
direct supervision over the three typing and printing and two canteen
operators. Furthermore, the laundry section was transferred to Mr. Brock's
area in 1980. All of the above led, obviously, to a decline in the workload
for Mr. Copeland. It appears, nonetheless, that Mr. Knight made a further
adjustment in the workload in assigning the Ball Shop to Mr. Copeland,
which h&previously been under the jurisdiction of Brock and Leclair. c- The result of this adjustment meant that Mr. Copeland noQ had the responsibility
for approximately fifty patients, which would bring his workload back to its
original level. In addition, Mr. Copeland was respdnsible for organizing
the Visitors Bus program from Metropolitah Toronto and the Work Program
with the local St. Vincent de Paul organization. 1n:these programs he
assumed a coordination and leadership role and was responsible for
determining the direction of ~the programs for the unit. When attempting
to arrive at the difference in Mr. Copeland's activities prior to and
after the reorganization, it appears as though he now attends fewer
meetings than he did previdusly and that the overlap as to the attendance
i of meetings between Mr. Brock and,Mr. Copeland has now been reduced. It
should also be noted tha;, in his earlierduties,Mr. Copelandhad been involved
in the general patient assessment which start?d in the Ball Shop. For 1%
years he did the assessment completely and after that he was only occasionally
responsible for the Ball Shop assessments. Indeed, after the reorganization
in 1981, Mr. Copeland's physical location has MW changed to the %&?~hop. '&e
Ball Shop has been used for assessment purposes because of its standard-
ization. On January 1, 1975 a nunter of psitions in the Penetangoishene
.
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facility were reclassified to Industrial Officer series, a classification
used for the Ministry of Correctional Services. Prior to this date, the
positions at Oak Ridge had been based on the Oak Ridge Attendant Series,
which was a nursing classification used by the Ministry of Health. These
positions were classified on an atypical basis as they did not meet the
classification?for nursing. However, Mr. Copeland's position was not
reclassified on January 1, 1975 at the time the other positions were
reclassified. Xis position was not even considered at that time.
However, in December, 1981, management decided to make the organizational
( changes that affect Copeland's position as set out above. In the minds
of management it became apparent that the person. responsible for the
Bospital Services belonged.to the Industrial Officer series. Indeed,
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it was conceded by Mr. Callas, 0”
?3ehalf of management,
that if Mr. Copeland's position had been submitted for reclassification
in 1975 he would have reclassified it at that time as Industrial Officer II
on an atypical basis. It is obvious that a classification on an atypical
basis is an acknowledgement that the fit is not as good as one would have
expected for a normal classification.
.
The main contention of the union is that the management has, in fact,
created a new position which should have been opened to competition.
However, in looking at the evidence and in the context of the various
functions carried out in the rehabilitation and recreational unit at
Penetanguishene, it becomes difficult to sort out the rationale for the
classification of various positions as far-back as 1975. Indeed, as has
already teen indicated, the amqlete reclassification in 1975 might have
obviated an-of the difficulties th2.t have heenraisafl in this particular
case.
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Ihe position na+~ being occupied by Copeland is in many ways a
composite of functions that have been carried on within the unit prior to
the reorganization. It is obvious that he has a lead hand responsibility
after the reorganization and that he attends fewer clinical meetings than
he did in his prior position. Nonetheless, he continues to make an input t0 the.%2
meetings~in terms of reports. The objectives in both areas, those under
Mr..Copeland and under Mr. Brock's jurisdiction, are virtually the same,
that is to teach and assess work habits for patients assigned to them.
While we do have some difficulty in appreciating the logic behind
switching the laundry unit to Mr. Brock's jurisdiction and)then
subsequenty switching the Ball Shop jurisdiction from Brock to Copelandr
honetheless, the new organization, at least in terms of syrmaetry and
assignment of vorkload appears as a rational response to the problems
faced by management in the fall of 1981. The issue with which we are faced
is whether the reorganization in its substance necessarily resulted in the
creation of a new position or whetherthe reorganization resulted in the
reassignment of other duties and responsibilities to Mr. Copeland in the
position which he now occupies. It is the contention of the union that the
reorganization creates a new position. The onus would therefore be on the
union to establish that. On the evidence before us, we are not satisfied
that the reorganization resulted in more than a reassignment of other
duties and responsibilities insufficient for the establi~t
of a new position. Article 18(l)(a) of the Crown Employees Collective
Bargaining Act, R.S.O. 1980, C. 108 reserves to the employer the exclusive
function with regard to complement, organization and assignment and it is
our finding that the management was within its rights in carrying out
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the reorganization as it did in December of 1981. For all of the abova
?XaSOnS, we would dismiss the grievance.
D;1TED at Toronto th.is 8th cky of Cecerker, 1982.
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R. W. Ianni, Q.C., Vice Chairnan
5: 2000
THE CROWN EMPLOYEES COL&ECTlVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Griever: R. Nabi
Ci-ievance/Cla&ification Officer
Ontario Public Service Employees Union
For the Employer: P. Mooney
Staff Relati,ons Officer
Civil Service Commission
21182
IN THE MATTER OF AN ARBITRATION
Under
OPSEU (Jim Walker)
and
Crievor
The Crown in Right of Ontario
(Ministry of Correctidnal Services)
Employer
J.F.W. Weatherill Chairman
E. H. Weisbach Member
H. Roberts Member
July 7, 1982
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In this grievance, dated December 3, 1981, the
.grievor alleges that the employer is in violation of
article 46.3 of the collective agreement between the
parties. That article provides for pre-retirement
lea~ve with pay, in certain circumstances.
There is no dispute as to the facts, which were
set out by the parties in a joint statement. Those
facts are as follows:
1.
2.
3.
4.
5.
6.
7.
8.
The grievor was at all material times an
employee of the Ministry of Correctional
Services and, an employee within the meaning
of the Collective Agreement.
The grievor was a Probation Officer II at.the.
time of the filing of the grievance.
The grievance was filed in a timely fashion
and proceeded properly through the stages
of the grievance procedure.
The GSB has jurisdiction and authority to
hear and determinethis grievance subject to
the proviso in Article 27.12 of the Collec-
tive Agreement.
There are no preliminary objections.,
The grievor has been continuously employed
by the employer since October 1, 1956. He
completed 25 years of continuous service,on
September 30, 1981, for which he received
5 days vacation in accordance with. Art. 46.8,
The grievor terminated employment with the
employer by retiring.
The grievor's dafie of birth is February 15,
1917. He attained the age of 65 years on
February 15, 1982.
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9. The grievor's mandatory retirement date was
February,28, 1982.
10. The employer's documentation shows that the
yrievor retired on January 15, 1982.
11. The grievor requested pre-retirement'leave
in accordance with Article 46.9, on or about
December 1, 1981.
12. At all material timesthe grievor earned
vacation credits at the.rate of 2-l/12 days
per month pursuant to Article 46.1.2(c) of the
Collective Agreement.
Article 46.9 of the collective dgreement is as
follows:
46.9 An employee who has complefedtwenty-five (25)
or more years of continuous service is entitled
to receive,-in the year ending with'the end of
month in which he attains the age of sixty-five
(65) years, pre-retirement leave with pay equal
to the difference between thirty.(30) days and
the number of days of his vacation leave-of-
absence earned in that year. as set out in
sections 46.1 to 46.8. Where the employee who
has completedtwenty-five (25) or more. years of service is absent from duty on leave-of-absence
without pay in that year; he is entitled to pre-
retirement leave with pay equal to the difference
between thirty (30) days and the number of days
of vacation leave-of-absence that he would have
earned in that year if he had not been absent
from duty on leave-of-absence without pay.
Clearly, the griever is an employee who had completed
twenty-five or more years of continuous service, at the
. maternal. times: He was therefore entitled to receive
pre-retirement leave with pay, pursuant to article 46.9
of the collective agreement. He was entitled to receive
such leave with pay in the year ending with the end of
the month in which he attained the aye of sixty-five
years. .The grievor attained the age of sixty-five years
.in February, 1982. The year ending with the end of that
month was the twelve-month period from Narch'l, 19i1, to
February 28, 1982. A "year" as here used, is not the
calendar year, but a twelve-month period ending on a
determinable date. Only in cases of persons with
birthdays in December would that period coincide with
the calendar year.
The pre-retirement leave to which the grievor was
entitled (in the period from March 1, 1981, to February 28,
1982) was, as article 46.9 then specifies, leave with pay
equal to the difference between thirty days and the
number of days of his vacation leave of absence earned
in that year, as set out in articles 46.1 to 46.8. "That
year" is clearly a reference to the year for which the
calculation is to be made. In the instant case, that year
was the twelve-month period from March 1, 1981 to
February 28, 1982.
The amount of vacation leave of absence earned by
the grievor in that year is calculated, as article46.9
indicates, by reference to articles 46.1 to 46.8. By
article 4:6.1.2(c), the grievor earned vacation credits,
at the m.&terial times, at the rate of 2-l/12 days per
month. It would appear that he was entitled to have
such rate appliedfor the full twelve months, pursuant
to article 46.2. Thus, in the year in question, the
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.grievor earned twenty-five days of vacation leave of
absence in accordance with those provisions; In addition,
by virute of article 46.8, there was added to the grievor's
accumulated vacation entitlement five days of vacation.
That special provision applies only to the one occasion
on which an employee completes twenty-five years of
continuous service. In then grievor's case, that event
occurred on September 30, 1981. He was credited with
the five days' vaaation entitlement provided for by
article 46.8.
Thus, the grievor
thirty days' vacation 1
question. All of that
was credited with a total of
eave of absence for the year in
leave constituted an earned benefit.
Clearly, under article 46.9, the total of pre-retirement
leave credits and vacation leave credits cannot exceed
thirty. That is the effect of.the formula set out. In
the instant case, because of the substantial vacation
leave to which the griever was entitled, and because,
during the year in question, he became entitled to five
extra days of vacation pursuant to article 46.8, that
maximum was reached. The yrievor was entitled to the
benefit of,article 46.9, but because of the other leave-
with-pay credits to which he was entitled under articles
46X to -46.8 (the intervening articles not referred to
are not material to the issue before us), this did not
result in any improvement of his position.
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It cannot be said that this interpretation of article
46.9, which in our view gives its words their clear and
ordinary meaning, renders it nugatory, or that the benefit
thereby provided is illusory, It would appear that
the article is of less value. to the more senior than
to junior employees, and where, as here, in the case of
a senior employee the one-time special credit for com-
pletion of twenty-five years' service applies there is no
practical benefit. That is, however, then clear effect
of the parties' agreement.
For the foregoing reasons, the grievance must be
dismissed.
DATED at'Toronto this 25th day of August; 1982.
: ; . . .
"1 concur'" (see addendum)
E.H. Weisbach Member
H. Roberts Member
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ADDENDUM
After reading and considering the decision .of the board in the
,above grievance, I must, very reluctantly, agree with the findings of the
Board. The wording of article 46.9 is, to the layman, a rather complicated
one and in my opinion is open to different interpretations. I agree with the
findings of the Board that, while the article.has certain advantages, it also
has certain disadvantages in particular for senior employees.
Therefore, I found myself in the position that I have ,to,
although reluctantly, ‘agree with the findings of the Board. However, I
wanted to make my feelings known, through this addendum.
August 7,1982
/lb
H. Weisbach Member