HomeMy WebLinkAbout1982-0310.Rivers.82-10-14IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Griever:
For the Employer:
Hearing: August 30, 1982
Griever
OPSEU (Deborah A. Rivers)
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
R.J. Roberts - Vice-Chairman
1. Thomson - Member .
H. Roberts - IMember
G. Richards
Grievance/Classification Officer
Ontario Public Service Employees Union
J.F. Benedict
Manager, Staff Relations
Personnel Branch
:Ministry of Correctional Services
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AWARD
At the outset of this arbitration, the Employer made a
preliminary objection to the jurisdiction of the Board. This preliminary
objection was based upon a contention that what was involved in the case
was the exercise by the Employer of an exclus~ive management right which
was not in any way fettered by a provision of the collective agreement.
The Union submitted that its entire case was based upon a contention that
this right was, in fact, fettered by a provision of the collective agreement;
hence, the Union was entitled to invoke the jurisdiction of this Board.
Upon due consideration, the Board concluded that since the issue being
raised involved interpretation of a provision of the collective agreement,
the Board had jurisdiction to proceed to the merits of the case. After
being informed of the Board’s decision in this regard, the parties proceeded
to present evidence and argument upon the merits.
II
In its substantive case, the Union contended that s.46.5 of the
collective agreement fettered the exclusive right of management to
schedule vacation, at least to the extent of permitting employees to opt
out of taking certain scheduled vacation days in order to accumulate
vacation under the terms of that provision. Section 46.5 reads as follows:
.
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An employee may accumulate vacation to a maximum
of twice his annual accrual but shall be required
to reduce his accumulation to a maximum of one (1)
year’s accrual by December 31 of each year.
The Union based a two-pronged argument upon this provision.
First, the Union asserted that the word “may” as used in the first line of
this provision must be read as, “may at his/her option” accumulate
vacation, etc. Secondly, the Union asserted that if the provision were read
in this way, an employee had the right to refuse to take certain scheduled
vacation days; otherwise, the right would be an empty one -- something
which could not have been intended by the parties. The Employer
contended that s.46.5 could not be accorded the meaning for which the
Union contended. In this regard, the Employer submitted that the word
“may”, referred to above, should be read as “may with the approval of the
Employer” accumulate vacation, etc.
Upon due consideration of the evidence and argument of the
parties, we conclude that the grievance must be dismissed. While we find
that the word “may” in s.46.5 of the collective agreement is best
understood when read as “may at his/her option” as per the initial
contention of the Union, we are unable to find any support for taking the
next step urged upon us by the Union, i.e., to conclude that because an
employee has an option to accumulate vacation days he has the right to
designate those scheduled vacation days he will accumulate. This right, we
find, belongs exclusively to the Employer.
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The essential facts of the case may be stated briefly. The
Griever is a Correctional Officer 2 at the Ottawa-Carlton Detention
Centre. On January I, 1982, the Crievor was credited with 15 days of
vacation time. According to a master rotation schedule which was devised
to implement a compressed work week, the Grievor was scheduled to take
a number of these vacation days in January.
Not wishing to take any vacation days in this particular month,
the Griever went, to the appropriate management personnel and indicated
that she wished to work her vacation slot in January. In due course, the
Employer denied her request.. The main reason for this denial appears to be
that under the master schedule, if the Griever had been permitted to work
during that week, there would have been too many officers on the shift.
When the Griever was informed that her request was denied,
she filed a grievance which stated, in pertinent part, “I grieve a violation
kl . ..Article 46.5 of the collective agreement.” The grievance form went
on to state that the settlement required was, “To be credited with vacation
time that I was required to use during the week of January 4, 1982 to
January 10, 1982. Further fi1 q re uire that I suffer no loss of pay for the
return of these credits.” The grievance was dated February I, 1982. This
arbitration followed in due course.
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IV
At the hearing, the Union contended that if the Board agreed
with its submission that s.46.5 of the collective agreement gave employees
an option to accumulate a certain amount of vacation time in any
particular calendar year, it necessarily followed that the Griever was
entitled to refuse to take the vacation days that had been scheduled for her
in January. Otherwise, the Union contended, it would become impossible
for the Griever to accumulate any vacation days within any particular
calendar year. This, in turn, the Union submitted, would render s.46.5
empty and meaningless; something the parties could not have
contemplated.
As we have already indicated, we agree with the first branch of
the Union’s argument above, i.e., that s.46.5 gives each employee an option
to accumulate up to a certain number of vacation days in any particular
calendar year so that they may be carried over to the next. This seems to
us to be the more natural meaning of the phrase used at the beginning of
s.46.5, “An employee may accumulate vacation... .‘I We reject the
submission of the Employer that the quoted language should be taken to
mean that the employee “may with the permission of the Employer”
accumulate vacation. This seems to us to be a strained interpretation of
the language. Moreover, in a related section of Article 46, ~46.7, we find
language indicating that when Article 46 was drafted the parties used ~much
more specific language to indicate when approval from the Employer was
necessary. This provision begins, “An employee with over six (6) months of
continued service may, with the approval of the Deputy Minister, take
vacation, etc.” (Emphasis supplied.) It seems that if the same meaning was
intended to be accorded to s.46.5, similar language would have been used.
We are unable to conclude, however, that our acceptance of the
first branch of the Union’s argument inevitably leads to acceptance of the
second, i.e., that an employee has the right to refuse to take certain
scheduled vacation days in order to exercise his option under s.46.5. There
is nothing in s.46.5 to indicate that the parties intended to imbue
employees with this additional right. And given that the exercise of such a
right would, as indicated in the evidence at the hearing, involve the
Employer in last minute re-allocations of complements to avoid having
excess numbers of officers on particular shifts, we should have expected
such a right overtly to have been expressed in the collective agreement.
This is ail the more to have been expected in’the light of the fact that to
find such a right in an employee would have to have involved a consensual
derogation between the parties from what otherwise would have been the
Employer’s exclusive right under The Crown Employees Collective
Bargaining Act to schedule, inter alia, vacations.
It seems to us that the option provided in s.46.5 of the
collective agreement merely entitles an employee, upon giving reasonable
notice to the Employer that he is exercising his option to accumulate a
certain number of days of vacation, to have the number of days of vacation
for which he otherwise would have been scheduled ieduced by the number
of days sought to be accumulated. It remains within the exclusive power of
the Employer to determine how the remaining vacation time of the
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employee will be scheduled.
In the present case, the Grievor did not merely give notice that
she was exercising her option to accumulate some days of vacation in the
calendar year 1982; she attempted to designate which of her scheduled
vacation days would be eliminated in response to her exercise of her
option. In so doing, she went beyond the scope of her right under s.46.5 of
the collective agreement. It was well within the province of the Employer
to refuse to exercise its own exclusive right in accordance with the
Griever’s wishes.
The grievance is dismissed.
DATED at London, Ontario this 14th day of October, 1982.
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R.J. Roberts Vice Chairman
I. Thomson IMember
H. Roberts Member