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HomeMy WebLinkAbout1983-0726.Adamo.84-11-02Between: Before: , IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (D.A. Adamo) Grievor - and -. The Crown in Right of Ontario (Ministry of Transportation and Communications) For the Grievor: T. Moore Grievance Officer Ontario Public Service Employees Union For the Employer: 'Hearing: Employer R.H. McLaren Vice Chairman F. Taylor Member W. A. Lobraico Member D.W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General / June 19, 1984 -2- DECISION 14r. Adamo is a Survey Technician III employed in the construction section of the Ministry of Transportation and Communications (M.T.C.) since June of 1972. Employees working on construction accumulate overtime during the construction season because of the nature of the work. In the past they have been taking the accumulated time as additional time off during~ the winter months when construction activity was at a low ebb. The _ Collective Agreement also provides for an employee to be paid for accumulated time rather than taking compensating leave. In the late summer of 1983 Mr. Adamo told his supervisor, Mr. Hery Guise, that he wished to have his accumulated'credits applied until they were exhausted commencing on the 19th of @; December. Mr. Adamo did not wish to go on what is known as winter maintenance. That activity involves driving snow plows and other equipment to assist in keeping' the highways clear during the winter months. on September 28th he was advised that he had been assigne,d to winter maintenance by a memorandun from a Mr. Davies on behalf of Mr. Livingston, the Area Construction Engineer. -3- > The grievance was filed on October 14th, 1983 which reah: "I grieve my Employer has assigned me to winter maintenance which I have never been assigned before. Meanwhile employees junior to myself take the preferential job by remaining on their regular job site. I further claim my Employer's action is inequitable, of a punitive nature, and denies me the right to training experience. It forces me to take off my accumulated overtime in the Fall at management's discretion. This to me is 'unreasonable' due to the fact winter vacations have been past practice". On failing to resolve the dispute with the grievance procedure having been initiated the Grievor's supervisor .advised him by memo dated October 25th, 1983 that there had been a failure to reach mutual agreement as to the time for him to take his overtime leave. Therefore, he was being required to .take it effective November 9th, 1983 with the Employer relying upon the of Article 13.5. By requiring him to take it at that time it would be used up prior to his assignment to winter maintenance in the highway's department of the Ministry. The relevant provisions of the Collective Agreement read as follows: "ARTICLE 13 - OVERTIME . . . 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of -4- 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. 13.5 Where there is mutual. agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. 13.6 Compensating leave accumulated in a calendar year which is not used before March 31 ~of the following year, shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level." The grievance to the extent that it raises the validity of the asqignment of the grievor to winter maintenance was not pursued in evidence or argument'before this Board. Articles 13.4 and 13.5 do not deal with this issue. It must be taken in these proceedings that the decision to assign the Grievor to winter maintenance by his Employer was a valid action within the terms of the Collective Agreement. To that extent much of the basis of the grievance is not at issue in these proceedings. ‘. There are two requirements in Article 13.4 to the scheduling of compensating leave. The first is to do the scheduling at a "mutually agreed upon time". The second -5- i ‘;: requirement recognizes that it may not .:. always be possible "to .Y'. agree. When it is not then "the Ministry shall reasonably determine the time of the compensating leave". The Union in its case puts both requirements in issue in these proceedings. The additional position of the Union is that if there was no bona fide ; c: attempt to reach mutual agreement then the discretionary action by the Employer in the second requirement is not triggered. '; SJ In the abstract what is mutual agreement might be - characterized in a variety of ways. A considerable amount of .,! evidence was put 'in through witnesses in an attempt to do this very thing. This Board ought not to set down general principles on what constitutes mutual agreement but determine whether that / 3 has occurred on the facts of this case. j The difficulty the &nployer finds itself in is -that while it has the right to assign an employee to winter maintenance the clauses dealing with compensating time off for accumulated leave do not take account of the constraints in.the Ministry for those assignments. It is this difficulty which forms the backdrop and framework to this grievance. If employees are to be assigned to winter maintenance on .the highways they must be available to work in early December and continue working thrpughout the winter months. They must be I .: . . regularly scheduled to work throughout the period to March 31. The Collective Agreement requires that the lieu time payments for compensating time off be completed by Marc~h 31 in Article 13.6. The effective result is to leave employees of the M.T.C who are in construction a very small window of time of not more than six c weeks and in many cases less than that in which to take lieu time. The shorter period of time would depend upon when ,the particular employees construction related work came to an end for seasonal or operational reasons. Mr. Adamo grieved the action of his Employer placing him on winter maintenance assignment. It is argued by Mr. Brown, Q.C. that the intervening act of grieving precluded the reaching of a i mutual agreement on the lieu time aspect of the concerns of Mr. i (2;; Adamo. The grievance did not relieve the Ministry of the obligation in Article 13.4 to attempt to reach mutual agreement zany more than it did for the employee. Counsel for the Employer argues that there was "no room for mutual agreement subject to M.T.C. accommodating his wishes". However, the same can be argued on the Union’s aide in that the constraints of this Ministry involving construction employees are such as to generate a. very small window of time in which each employee can mutually agree to lieu time when there has been an assignment to winter maintenance. , -7 - 3 The Board finds ~that both the empl,oyee and the Employer had a continuing obligation under 13.4 'to mutually agree following the filing of the grievance in October. Therefore, the question of mutual agreement comes down to what transpired on October '25th, 1983. The Grievor had entitlement to a lengthy (-~-,period of time off. It would exceed or totally absorb the window of time available before the assignment to winter maintenance would take effect on December lst, 1983. Each party approached the other with fixed positions which were irreconcilable.~ The employee wanted time off over the Christmas period. The Employer wanted a "running-down" of overtime credits prior to the assignment to winter maintenance; no leave time during the winter maintenance .assignment. If each were to implement its desires there was irreconcilable conflict in those positions. No amount , ,of compromise would produce a "mutual agreement" on the facts of each party's position. The result is that there was no mutual agreement in this case under Article 13.4. In reaching that conclusion, the Board specifically denies the argument of the Union that there was a lack of bona fides on the part of the Ministry in attempting to reach the mutual agreement requirement. The foregoing conclusion brings into play the second requirement of .Article 13.4 that is that "the Ministry shall reasonably determine the time of the compensating leave". The question of reasonableness oft the Ministry in this case raises the -8- > ‘! issue of the relationship between a work assignment by the Employer and scheduling of compensating time off. There is no answer to that issue in the Collective Agreement. What this .Board must do is examine all the facts to determine if the Employer's actions were such as to say that it reasonably determined the ($ympensating leave. The reasonableness of the Employer's action . 1s not measured against the individual employee that is done' in the mutual agreement test. It is an overall assessment of the options available to the Employer in all of the.circumstances. From the Employer's perspective there are two fundamental motivations to the assignment of its employees ,to winter maintenance. First, many of its employees in the construction division would not be employed throughout the year if they were c not assigned to some other work. .This is caused by the seasonal ;L.:\ ..‘I ':.%ature of construction activity. So the fundamental motivation of .the Employer in reassignment is to ensure employees of continuous year round work. The second motivationof the Employer relates to the seasonal work of the winter maintenance department. That work is obviously of a seasonal nature which is easily balanced against the seasonal nature ~of the construction work. It is both ~natural and logical therefore for the Employer to assign construction employees who cahnot continue to be employed through the winter months in construction activities to the winter maintenance. Its ‘.~'ctions can at the overall level be considered to be reasonable \ '. -9- ‘\ and within its prerogative to undertake as the Employer. What clause 13.4 requires is failing mutual agreement that the Ministry ..: "reasonalby determine the time of the compensating leave". The're are good reasons for making the assignments effective December 1st in any year and having them run .through to March 31st. That is .~.: c. the period during which problems on the highways will arise as a result .of weather conditions. It is also not unreasonable for the ,: L 'Employer to require that. employees given such' assignments be available on a continuous and regular shift basis throughout that period without receipt of time off resulting from lieu ,time ,. :I ,I_ 1 arising during the construction season in the summer. That leaves the Employer in the position of being unable to do anything but i; give the compensating time off in advance of the winter work :r* a: assignment and towards the end of the construction season when ; Lg: things are being wound down prior to the curtailment for the I winter. That is precisely what was 'done in the case of this / ', Grievor. As a result the Employer has acted reasonably in determining the time of compensating leave as a general matter in the ,fashion that it has done. On the specific facts of this case "I ".i it has also acted reasonably with this employee. For all of the # .a foregoing reasons the actions of the Employer are upheld and the grievance is dismissed. ,I -10 - Dated at London, Ontario this 2nd day of Kovember, 19i4. Richard H. McLaren, Vice-Chairman F. Taylor, Member w. Lobryico, Member