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Home My WebLink About1982-0198.Whitehead et al.82-08-09IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 138/82 133/82 200/82 201/82 202/82 Between: Before: For The Griever: For the Employer: Hearing: OPSEU (Lee Whitehead et al) Griever - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer R. J. Roberts - Vice Cha.~rmm E. J. 3ounsall - flei?lSer t!. Roberts - Member N. LUCZay Grievance/Classification Officer Ontario Public Service Err,p:syees irnion ii. J. Gorchinsky Chief Staff Relations Officer Civil Service Commission June 8, 1382 - 2- INTERIM AWARD I. Summary of Submissions oft the Parties: At the outset of the hearing in this case, the Employer, the Ministry of Natural Resources, made a preliminary objection to jurisdiction. It was agreed at the hearing that the matter raised in this preliminary objection would be dealt with in an Interim Award before any evidence was heard on the substantive case. A. The P,relimin~ary Objection: Essentially, the Employer contended that this Board was withoutjurisdiction because the matter complained of by the grievors involved the exercise by the Employer of an -exclusive management right. This exclusive management right, submitted the Employer, was the allocation of the grievors to an hours-of-work schedule entitled Schedule 6, which was set forth along with-other similar schedules in Article 7 of the Collective Agreement. Counsel for the Employer contended that because no express provision in the Collective Agreement or in any applicable statute fettered thee Employer in allocating, classes of employees to various of these schedules, including Schedule 6, -3- the Employer possessed complete discretion to make these determinations as it saw fit, and the Grievance Settlement Board was without jurisdiction to review such decisions. B. The Response of the, Union: The Union, the Ontario Public Service Employees Union, contended that it was within the power of this Board to review the "administration", etc., of the Collective Agreement by the Employer, including Article 7, relating ~. to the hours-of-work schedules. The Union submitted that all of the schedules set forth in this Article of the Collective Agreement were ambiguous, and as such, their application to various classes of employees was reviewable for conformity to the past practise of the Employer at the time of negotiation of the Collective Agreement. It was in the light of this past practise; the Union contended, that the Collective Agreement was reached. it The Union submitted that if the Board agreedthat had jurisdiction upon the above basis, the Union would introduce evidence of past practise as to the criteria applied by the Employer in allocating classes of employees to the various hours-of-work schedules in Article 7 of the Collective Agreement, and how the Employer had changed -4- the working conditions of the grievors to such an extent as to bring them outside the most significant of the criteria applicable to Schedule 6: The Union indicated that in a hearing of the substantive case, it would seek either restoration of working conditions appropriate to Schedule 6 employees or reassignment of the grievors to a more appropriate hours-of-work schedule. II. Summary of.Award: Upon due consideration of the arguments. of the parties we conclude that we do not have jurisdiction to make the review that the Union indica~ted it was seeking. We cannot accept the evidence of past practice that the Union seeks to introduce here. A prerequisite for the admission of such evidence is that there must be an ambiguous provision of'the collective agreement that such evidence might assist in clarifying. Hire, the collective agreement contains no such ambiguity. Moreover, Article 7.7 of the collective agreement indicates that it is an exclusive right of management to transfer employees from one hours-of-work schedule to another. It seems that this carries the necessary implication that it is an exclusive management right to make the initial. assignment of an employee to an hours-of-work schedule, unless that ’ -5- right is limited by clear language of the collective agreement. NO such express limitation was pointed. out to us in this case. III.. Detailed~ Consideration of 'then Is'sues Raised by the Parties: The grievers in this case all were classified in a classification known as Resource Technician Senior. Until March 1, 1980, they were not included in :the bargaining unit. On March 1, 1980 the Resource Technician classification, along with a number of other classifications, was transferred to the bargaining unit by agreement between the parties. Prior to this transfer, the Resource Technician class. was allocated to-schedule 6 of the Employer's hours-of-work .schedules. (Apparently, the schedules have been used by the Employer over a considerable period.of time for both management and bargaining unit employees.) Section 7.3 of the Collective Agreement sets forth as follows the hours of work for Schedule 6: 7.3 SCHEDULE 6 The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one-quarter (36-l/4) hours per week. It will be noted that employees allocated to this schedule are required to work a minimum of 36-l/4 hours per week but'there is no maximum. The effect of this is that -6- employees allocated to this schedule are not entitled to overtime, either in the form of monetary compensation or compensatory time off. Counsel for the Employer explained that generally, classes of employees which are allocated to Schedule 6 involve employees who have duties which place irregular demands upon their time. They might not have set hours or be required to work the same.length of time each day. Because of this, they are paid on a weekly, instead of hourly, basis. At the hearing; counsel for the Employer made an extensive review of the Collective Agreements affecting the qrievors and the legislation dealing with the jurisdiction of the Grievance Settlement-Board. We were impres~sed with the thoroughness of this review and followed the submissions of counsel for the Employer with considerable interest. We agree that this review amounted to a substantial showing that no provision of the Collective Agreement and no provision of the Crown Employees Collectiye~ Bargainin Act expressly gives an employee the right to grieve a decision by the Employer to allocate him or his class to a particular hours-of- work schedule. -7- We also agree that in allocating individual employees to various hours-of-workschedules, the.Employer is not, in fact, administering .the provisions of Article 7 of the collective agreement. The Union submitted that in so doing'the Employer did administer Article 7. This p~rovision of the collective agreement is patently ambiguous, the Union submitted, in that it merely sets forth~the hours of work of the various schedules and does not describe the criteria for allocating employees among the various schedules. This ambiguity, the Union contended, entltled the Union to bring in evidence of past practise in this regard and ask the Board to rule as to -whether the working conditions of the qrievors had changed to such an extent to bring them outside the most significant of the criteria applicable to Schedule 6. y-i As indicated, we cannot agree that in allocating employees among the various hours-of-work schedules, the 'Employer is engaged in administering Article 7 of the collective agreement. In this regard we note that Article 7 is devoid of any language indicating that ~,.,,yy any agreement was reached between the parties on how this allocation function ought to be performed; rather, the hours-of-work s.chedules in the Article are descriptive, .with no directional content whatever. . - 8- Section 7.7 of Article 7 does contain some directionre- garding the transfer of employees between hours-of-work schedules. Xather than assist the case of the Union, however, the presence of this provision appears to assist the case for the Employer. Section 7.7 'provides as follows: 7.7 Where the Employer intend to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union"@rior i to such tmasfer. When the trans'f,er~ occurs, the employee's weekly salary based on his basic hourly rate shall be adjusted accord- ingly. This provision appears to contemplate that.there will be discussion between the Employer and the Union prior to a transfer from one schedule to another. Implicit in this is,the notion that the decision to transfer is within the exclusive riqh,t of management, the sole limitation thereupon being the requirement for prior discussion. The above observations reinforces the conclusion that wehave reached that in allocating employees among its various schedules, the Employer is executing an exclusive management right and is not administering an ambiguous provision of the collective agreement. In such circumstances, evidence,of past practise can be.of no assistance to the - 9 - Union. Unless fettered by the Collective Agreement the Employer remains free unilaterally to perform this allocation function. This includes the freedom to alter'its prior .practise with respect to allocation to hours-of-work schedules, so long as it acts ingood faith and does not jeopardize the integrity of the bargaining unit. There was no indication that the actions~ of the Employer with respect to the grievors herein were taken in bad faith. The grievances ,are dismissed. We lack jurisdiction to make the review requested by the Union. DATED AT London, Ontario this .$a day of 1982. R. J. Roberts, Vice Chairman "I concur" H. Roberts, ‘??ember " issent." (dissent to follow) E:G. Jounsall, PIember