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HomeMy WebLinkAbout1983-0654.Marles.84-11-07IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: R. J. Roberts I. J. Thomson W. A. Lobraico For the Grievor: T. Moore Grievance Officer Ontario Public Service Employees Union For the Employer: \ G. Eden Staff Relations Officer Ministry of Transportation and Communications Hearings: May 25, 1984 August 23, 1984 OPSEU (James L. Marles) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Vice Chairman Member Member -2- DECISION In this arbitration the grievor contended that the Ministry violated the provisions of Article 13.04 of the Collective Agreement when the grievor was required to take compensating leave to reduce his overtime credits in the Fall of 1983. For reasons which follow, the grievance is dismissed. The grievor was employed as a Technician I, Construction, $ with the Ministry of Transportation and Communications. He was a long-service employee, having been employed with the Ministry for almost 30 years. Essentially, his duties involved acting ‘,s an Inspector on construction sites. The work was seasonal in nature, coinciding with the construction season. The grievor worked long hours. He testified that usually, he would accumulate from 400 to 600 hours-worth of overtime credits by the end of the construction season in the Fall. Over the years, the grievor had become accumstomed to taking compensating leave in lieu of pay for these ,overtime credits from Christmas on. The grievor was an outdoorsman. He enjoyed hunting and fishing during the Winter months. There was some indication in the evidence that the grievor had been used to maintaining a string of fishing shacks for the purpose of ice fishing during much of the Winter. On June 29, 1983, Mr. J. Smrcka, the Manager of the Construction Office, circulated to all construction staff a' - 3 - memorandum indicating that at the end of the construction season the Ministry would be required to reassign some of the construction staff for the Winter months. The memorandum set forth three different areas in which Winter assignments might be made. The construction staff were requested to indicate their preference on a form which i was attached to the memorandum. The grievor indicated on his form that if he were to receive a Winter assignment his sole prefer- ence would be to be assigned to Winter maintenance. This was the area in which it was indicated that most of the Winter assign- ments likely would fall. At the time, it was not at all clear that the grievor would receive a Winter assignment. He had been scheduled by the Construction Supervisor for the Toronto area, Mr. Carl R. Watson, to work on two successive highway contracts. The first of these was scheduled to be completed in July, 1983. The second was scheduled to go on for the balance of 1983 and end in early 1984. If these plans had been carried out, the grievor would not have been available to perform Winter maintenance. In July, 1983, however, it became clear that budget constraints and a bridge failure would require the second of these contracts to be deferred until the 1984-1985 construction season. This meant that the grievor would not have available to him any work after the initial contract was completed. Mr. Watson testified that he planned to request the griever to reduce his compensating leave, perhaps beginning around September 1, 1983. In this way, the grievor would use up the bulk of his overtime credits before -4 - the onset of Winter. Thereafter, the grievor would become an ideal candidate for assignment to Winter maintenance. . It seems that the Construction Department had made an undertaking to the Maintenance Department of the Ministry that the construction employees who were assigned to Winter maintenance would take as little time off as possible during the Winter maintenance months. It was made clear by the Maintenance Department that the latter could not tolerate employees taking a great deal of time off; otherwise, it would encounter considerable difficulty in staffing crews who were assigned to keeping the roads clear of snow for the benefit of the travelling public. As it 'happened, the griever was able to work for a longer period of time than Mr. Watson originally had anticipated. In the early part of July, Mr. Watson was contacted by another Construction Supervisor, Mr. L. Cotgrave, about the possibility of borrowing a Construction Technician from him, in order to replace one of Mr. Cotgrave's personnel who was going on vacation for a period Of two weeks. Mr. Watson assigned the grievor to this task. The grievor arrived at the new construction site on July 14, 1983. This was about two weeks earlier than the scheduled vacation for the other employee; however, it was necessary to overlap in this fashion in order to familiarize the grievor with the project that was underway and maintain continuity of contact with the various contractors. The grievor also stayed for a period -5- of a week or two after the regular employee returned. Again, this was for the purposes of maintaining continuity of contact. Toward the latter part of the grievor:s stay on this particular construction project, Mr. Cotgrave called Mr. Watson, the grievor's regular supervisor, and consulted with him as to what to do with the grievor after September 6th, when it appeared there would be no further need for the grievor's services. Mr. Watson stated that in order to allow the grievor to commence his Winter assignment on schedule with reduced overtime hours, he should be requested to go off on compensating leave for the period of time after that date. Apparently, Mr. Watson did not undertake to deal personally with the grievor, who after all, was his own employee. He left it to Mr. Cotgrave to handle. Neither Mr. Cotgrave nor any of his management personnel was very familiar with the grievor. This meant that the grievor, a long-term employee, was going to be advised by virtual strangers that he was being assigned to Winter maintenance and that in order to reduce his overtime credits for this assignment, he was being requested to take what was for him the unusual step of going off on compensating leave September 6th. This unenviable task fell to Mr. D. McCrory, a Bargaining Unit employee who at the time was acting as the Project Supervisor in the absence of the regular supervisor, Mr. Steve -6- Wasylyszyn. The result was all but predictable. According to the grievor, "I was in the Field Office on Friday, ALgust 26th. Mr. McCrory said, 'I want to speak to you'. He said, 'Tex, you are going home next week. Take your overtime off.' He said I'd be going home the following Friday, September 2. He said on the Monday I'd be'taking over a lower-class assignment, a Checker's job. I asked him by whose authority do you tell me this? i He gave no reply. He did not ask me what my preferences were regarding overtime. He gave me no reason as to why. He made no attempt to arrive at any mutual agreement. The conversation lasted two to five minutes...1 felt sore, that I'd been treated really bad. I was pretty ugly. McCrory understood how I felt... ." On the following Monday, August 29, the grievor again made his feelings clear to Mr. McCrory. He told him, among other things, that he should not have to go home and take his overtime and that he believed that a junior employee should go home while he remained on that particular job site. He added that in order to get to the bottom of the situation he was going to go to the Union at Head Office and take it up there. Mr. McCrory did not attempt to engage the grievor in further conversation. He reported what the grievor was, saying to Mr. J. Cameron, a Project Supervisor on the adj,acent contract who was looking after his questions in Mr. Wasylyssyn's absence. Mr. Cameron referred the matter to Mr. Cotgrave. -7- On September 1, 1983, Mr. Cotgrave set up a meeting with the grievor in the Construction Office. Also present at this meeting were Mr. Wasylyssyn and a Union Steward, Mr. C. Watson. Mr. Cotgrave testified, "I proceeded to explain why I called the meeting. I wanted to review the grievor's vacation and overtime credits and his Winter assignment. I asked the grievor , if there was a problem and if I could help resolve the problem. The grievor said he did not want to discuss the matter, that it was in the hands of the Union. I did not pursue the matter any further. The grievor did request a written statement. I indicated to him the verbal instructions given to him on August 26th indicated that we had requested that he take overtime commencing September 6th. I would extend it to commence September 12th. I also informed him I had discussions with Steve Wasylyssyn prior to the meeting and he told me that'there was a discussion between him and the grievor regarding vacation for deer hunting in November. I indicated to the grievor that I would also grant his vacation requested for two to three weeks in November. I told him I had already contacted his Area Construction Hngineer for the Toronto area and that I would inform him that I extended the.commencement date for assignment to Winter maintenance to December 1 from November 1. Previously I had sent a memo saying his date would be November 1st. . . . Since he arrived in the Port Hope area, the grievor had not indicated any special arrangements he needed for overtime off. Not at any time." In his testimony, the grievor confirmed that he -8- did not indicate to Mr. Cotgrave when he wanted to take his overtime off. He said in his testimony that at this meeting, "Mr. Cotgrave opened up a roll of paper. It had various names and whatnot on it. . . . He said I was to take off my overtime to November. I said I usually go hunting for two weeks in November. I wanted more time. With that he rolled up the paper, went into the other office and he made out a memo... He did not give any reasons that I can recall. He did ask when I wanted time off,yes. The only time I wanted off was the deer hunting season for two weeks. But this was only regarding vacation and not overtime. I feel there was no effort to reach agreement with me regarding overtime." Shortly after this meeting, the grievor filed the grievance leading to the present arbitration. At the hearing, the submissions of the parties revolved around the wording of Article 13.4 of the Collective Agreement. This Article reads as follows: ARTICLE 13 - OVERTIME . . . . . 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one- quarter (7-l/4) hours or eight'(8) hours as applicable, shall receive compensating leave of one and one-half (l-1/2) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. There were two submissions with respect to Article 13.4. The first was that in dealing with the grievor the Ministry did not - 9 - attempt to reach mutual agreement as required by the penultimate sentence of the Article. The second argument was submitted in the alternative. It was that, in any event, the Ministry did not "reasonably determine" the time of the grievor's compensating leave in the circumstances of this case. There appeared to be consensus between the parties that Article 13.4 requires both parties to make bona fide efforts -- to reach mutual agreement regarding the timing of compensating leave before the Ministry becomes vested with the power unilaterally to make this determination in accordance with the final sentence of the Article. Not surprisingly, however, the parties did not agree as to the nature of the bona fide efforts to reach mutual -- agreement. In its submission, the Union contended that in order to constitute a bona fide effort, there would have to be, inter -- *, a willingness on the part of both sides to compromise. The Ministry, on the other hand, submitted that willingness to compromise could not be taken as a general criterion to be applied in every case. While wherever possible, the Ministry submitted, it would be in the interest of both parties to compromise, it was not always possible for the parties to do so. For this reason, the Ministry submitted, the Board should avoid attempting to lay down general criteria for assessing what constitutes a "bona fide attempt" -- \ to reach agreement. Rather, the Ministry submitted, the matter ought to be determined on a case-by-case basis. The position asserted by the Ministry appears to be the most appropriate approach to take regarding the question - 10 - whether the parties made bona fide attempts to reach mutual agree- ment regarding the timing of compensating leave. So many factors might enter into individual determinations of what stance to take in bargaining upon this issue that it would appear to be unwise to attempt to articulate general criteria which must be adhered to in order to avoid running afoul of the requirements of Article 13.4 of the Collective Agreement. More specifically, it would not appear to be appropriate to articulate a general criterion of willingness to compromise. Situations may readily occur in which the interests of the parties, though reasonable in their own contexts, may clash to such a degree as to make impossible any effort to compromise. It would seem that the most that might be said with respect to the element of mutual agreement in Article 13.4 of the Collective Agreement is that the parties must negotiate in good faith, in the sense of attempting to bring about by discussion a possible settlement regarding the timing of compensating leave. While in the present case, there might have been some poor judgment on the part of the Ministry in deciding which personnel should conduct the negotiation with the grievor, there was nothing in the evidence to indicate that the negotiation itself was carried out in bad faith. There were two discussions with the grievor-- one with Mr. McCrory and another with Mr. Cotgrave. The evidence tends to indicate that particularly in the latter discussion, Mr. Cotgrave made an effort to convey to the grievor the Ministry's reasons,for requesting him to reduce his overtime starting in 8 I - 11 - September. He also made an effort to understand the griever's reasons for disagreeing with the Ministry on the issue. There was no failure on the part of Mr. Cotgrave to attempt to explore what, if any, grounds of settlement might exist. Turning to the second submission of the Union, i.e., that the, Ministry did not "reasonab1.p determine" the time of the griever's compensating leave, we find that on the evidence the submission likewise must be rejected. The decision of the Ministry was not made in an arbitrary or capricious manner; it was.made on the basis of reasonable business considerations. Due to unforeseeable circ,umstances, the grievor became available for a Winter assignment. The only Winter assignment that he indicated a preference for was Winter maintenance. In order to meet the needs of the Maintenance Department, it was necessary for the grievor to reduce his overtime credits in the Fall. Nothing sinister, nothing discriminatory entered into this decision. It rested upon reasonable business requirements. For all of the above reasons, the grievance must be dismissed. DATED at London, Ontario, this 7th day of November, 1984. - 12 - Partial Dissent Attached I.,J. Zhomson- Member W. A. Lobraico Member - 13 - JAMES L. MARLES 654/83 PARTIAL DISSENT I have to agree with the conclusions reached in the Award that the grievance be dismissed, but I disagree with the conclusions expressed in the last paragraph of the Award on Page 11. Article 13.4 of the Collective Agreement states in the last full sentence, "Failing agreement the Ministry shall 'reasonably determine' the time of the compensating leave." By no stretch of the imagination could I agree that there was an attempt to reasonably determine the time of leave due the Grievor. I cannot agree with the Award where it states, "The decision was not made in an arbitrary manner". He was advised on August 26th that he would be going on leave commencing September 2nd. There was no attempt to determine any wish he might have. What could be more arbitrary than that. Shabby, shabby treatment for a person who had twenty- nine years' seniority. Surely, he was entitled to more consideration than that. If Article 13.4 is to mean anything there has to be input, consultation and compromise from both parties. I have to agree that the Ministry has the right to make the final determination, if agreement cannot be reached. However, there must be a bona fide attempt first to reasonably determine the time. The Grievor impressed me as an individual who would be reasonable, if the problem had been explained to him in a proper manner by superiors he was used to dealing with. People from his own office. He should have been returned to his home base and the discussion and determination made there. It was not fair or right that Mr. McCrory and the Grievor had to have the confrontation. i, I I. Thomson, Member