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HomeMy WebLinkAbout1984-1588.Union.85-07-19IN THE MATTER OF AN ~ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~. ., Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: R. J. Delisle J. McManus I.,J. Cowan For the Grievor: S.M. Grant, Counsel D. Winter-mute, Counsel Gowling & Henderson Barristers & Solicitors For the Employer: A. Warner McChesney Staff Relations Officer Staff Relations Branch Civil Service Commission Hearing: June 3, 1985 OPSEU (Union Grievance& Grievor~ - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer Vice Chairman Member Member AWARD .I /i This is a union grievance. The question presented concerns the manner of treating a bargaining unit employee who is temporarily assigned to fulfill managerial duties. Such an 1 employee is thereby in a classification assigned to Schedule 6 and is required to work a minimum of 36 hours per week: there is ,-. no maximum number of hours specified. An employee performing .managerial duties who is required to work on a statutory holiday is entitled as compensation to have a day off in lieu. A bargaining unit employee, however, who is temporarily assigned remains a member of the bargaining unit and Article 6.5 provides: Where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement, he shall retain his rights and obligations under the Collective Agreement. The Union claims' then that such employee is entitled to compensation asset out in Article 19: 19.1 Where an employee works on a holiday included under Article 9 of the Employee Benefits Agreement, he shall be paid at the rate of time and one-half (1 ) for all~hours worked with a minimum credit of seven and one quarter (7+) or eight (8) hours, as applicable. 19.2 'In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7%) or eight (8) hours pay as applicable at his basic hOUKly rate OK compensating leave of ; seven and one-quarter (7%) or-eight (8) hours as applicable, provided the employee opts fOK compensating leave prior to the holiday. The Ministry argues that payment attaches to the position and not to the employee: an employee filling a certain~position deserves to be treated as all others filling that position and no better nor worse, Exhibit 2. -2- The Union's argument is very simple. Article 6 covers the topic Temporary Assignments. The Article's final clause states that an employee temporarily assigned "shall retain his rights . . . under the Collective Agreement." The clause does not say he shall .retain ,some of his rights. We accept the Ministry's statement that neither does its say explicitly that he shall retain all of his rights but any fair reading of the actual language use compels such an interpretation. "His rights", unless otherwise limited, must be-read as all inclusive. Counsel for the Ministry cited the decision of this Board, Garlock, 15/60 (MCLaKen) as authority for the propoSitiOn that a bargaining unit employee's rights to grieve and rights generally are limited when temporarily assigned. We.were indeed troubled by some of the language in the decision. The decision reads in part: The position to which the Grievor was temporarily assigned was not one within the bargaining unit. Therefore, a person occupying that position on a full-time basis, not temporarily assigned, would not be able to grieve Under the collective agreement between the parties. What is different in this case is that on temporary assignments an employee remains both a member of the bargaining unit and a member of the Union. That would entitle the employee to griev,e matters involving the temporary assignment such as the items referred to in Article 6 of the collective agreement. HOweVeK, while the employee iS occupying the excluded position he must do so on the same basis as those who fill the position on a regular basis. That means that disciplinary matters, which arise while occupying the excluded position are not grievable under the collective agreement. HOweVeK, it may be possible to grieve under statutory provisions extending the Board's jurisdiction. This Board has no jurisdiction over excluded positions. What transpires in respect of employees occupying excluded positions by way of temporary -3- assignment is beyond the purview of this Board, unless it involves Article 6 of the collective agreement. The fact that an employee remains a member of the ~. Union and the bargaining unit , while a peculiarity of ~~ the nature of temporary assignments, is of no KeleVance in determining jurisdiction. It is, therefore, concluded that the Board has no jurisdiction to hear the grievance under the provisions of the collective agreement. To conclude otherwise would mean that persons temporarily assigned to-positions excluded from the bargaining unit would have rights to grieve under a collective agreement. Whereas those occupying the position not by way of temporary assignment, who might have an identical complaint, would not have access to this Board. Other avenues are available to the. GKieVOK to seek a remedy in this matter. Those avenues are also available to persons excluded from ,the provisions of the collective bargaining agreement between the parties. Therefore, the Board has no 'jurisdiction to hear the grievance under the terms of the collective agreement. We.don't understand why a temporarily assigned employee is limited in his ability to .grieve only matters "such as the items KefeKKed to in Article 6 of the collective agreement". Counsel for the Ministry before us argued that it was only equitable to treat a temporarily assigned employee "on the same basis as those who fill the position on a regular basis". Counsel argued that such an employee, gaining the higher pay secured, in the management position gives up certain rights in exchange; while indeed an individual employee may in a paKticular.case in fact be prepared to do this there is nothing in the Agreement to indicate that the Union has agreed to such a trade. While it may on the surface appear inequitable vis-a-vis the regular management employee it must be remembered that the temporary in turn does not have his security of position. The decision Garlock worKies that to hold Otherwise "those occupying the position not by WaY -4- of temporary assignment, who might have an identical complaint, c .i would not have access to this Board". We think that the short answer to this concern is that they'll never have "identical complaints" as the bargaining unit employee's .cOmplaint will arise out of the agreement while.the other is excluded therefrom. The regular management employee may go elsewhere with his complaint; the employee who continues to pay his union dues and remains a member of the bargaining unit is entitled to come to this Board. With .great respect and reluctance we feel unable to agree with the limitations set out in the Garlock decision. - Counsel for the Ministry objects further-that an employee temporarily assigned cannot have the benefits of Article 19.1 since such an employee doesn't have an "hourly rate"; he is paid a salary and has 'a minimum number of hOuKS of work, 36 hours per week, but no maximum. We believe the answer to this objection lies in Article 13.7.2'which provides: 13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting OK related duties, shall-be paid one and one-half (I&) times the employee's basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36k) hours per week, for all such work after eight (8) hours in a 24-hour period. /, _ i . Counsel cited this provision as evidence that the parties to the Collective Agreement did address their minds to the issue of bargaining unit employees assigned to Schedule 6 and specifically provided for overtime rates in one single area, fighting forest fires. Counsel argues that this indicates that other bargaining unit employees assigned to Schedule 6 are not then entitled to -5- overtime rates OK the benefits of double,time on statutory ,: CT holidays. We do not read Article 13.7.2 in this-way. We recognize that some bargaining unit employees are in classifications assigned to Schedule 6 on a regular basis. Those employees are not entitled to overtime rates save and except fOK the exceptional situation when they are called on to fight forest f-ires. The clause does not speak directly OK indirectly to bargaining unit employees temporarily assigned to a classification in Schedule 6. Rather than furthering the MiniStKy'S position we see the clause as an example of how an....;. hourly rate can be most reasonably calculated when-dealing with a bargaining unit employee~who has been temporarily assigned. That is, adopt the technique found reasonable by 'the parties in another context, Counsel for the Ministry also argued, in the alternative, that any rights to compensation retained by a barg,aining unit employee temporarily assigned to management duties are limited to those spelled out in Article 19.6: 19.6 Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6, who are KeqUiKed to work on their day off OK on a holiday included in Article 19 of the Employee Benefits Agreement, shall receive equivalent time off. Consistently with our view of Article 13.7.2 we read this as referring to bargaining unit employees who are regularly in classifications assigned to Schedule 6. We grant the declaratory relief sought by the Union that the Ministry, in failing to provide compensation for time worked on Statutory Holidays, pursuant to Article 19.1 and 19.2, -6- for bargaining unit employees acting in management positions is 2 : .3 contrary to Article 6.5 'of the Collective Agreement. The Union also sought in the Grievance, Exhibit 1, *psoper entitlementto all employees who have been detrimentally affected in the period covered by this grievance". We agree with Counsel for the Ministry that-the Unioncannoi request compensation for individuals by a Union grievance. The various individuals involved could have filed grievances seeking compensation. Dated this 19th day of July, 1965. I .e, Vice-Chairman J. HcManus C,Q- 1-J. Cowan, Member