GSB #0789/98, 1080/98, 1252/98, 1253/98, 1620/98, 2005/98, 1440/00
OPSEU#98B397, 98B506, 98B612, 98B613, 99B049, 99B325, 01B028
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McGann)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE Daniel A. Harris Vice Chair
FOR THE Andrew Pinto, Counsel GRIEVOR Barrister and Solicitor
FOR THE Len Hatzis, Counsel EMPLOYER Legal Services Branch Management Board Secretariat
HEARING September 10, 1998, June 16, 1999, December 15, 1999, February 1, 2000, February 15, 2000, February 23, 2000, February 25 , 2000, May 30, 2000, June 16, 2000, August 29, 2000, September 13, 2000, October 5, 2000.
The Proceedings:
This decision deals with a number of grievances, filed by OPSEU on behalf of Dag McGann, which relate to scheduling and work assignments. Mr. McGann is a civil court registrar (hereafter CCR), being an unclassified position with the Ministry of the Attorney General. CCR’s are assigned to assist a judge while court is in session. At the commencement of these proceedings the grievor had 19 grievances. The grievances before the Board for decision here are as follows:
DATE ARTICLE ISSUE
June 25, 1998 OAD1 withdrawn
July 15, 1998 3.2, anti-union discrimination
August 12, 1998 45.1 leave credit reports OAD 2.1 7 ¼ hours per day 31.7.1 “Clapperton” issue
August 12, 1998 3.2 anti-union discrimination in lay- off (Summer 1998)
August 14, 1998 3.2 Withdrawn
September 25, 1998 3.2 anti-union discrimination 22.6.1 attendance 22.6.2 attendance at GSB step meetings
October 31, 1998 31.8 attendance credits and sick leave 3.2 anti-union discrimination OAD 10 stand-by time
November 12, 1998 3.1/3.2 stand-by time OAD10
November 19, 1998 3.2 anti-union discrimination 22.6.3 attendance at step meetings 31.4 attendance at GSB
December 18, 1998 3.2 employer changed time sheets
December 29, 1998 21 letter of discipline
December 29, 1998 3.2 same as #16
Grievance 6 was withdrawn. Grievance 10 was withdrawn as duplicating 9, and the union abandoned any allegations of a breach of article 3.1, being the general anti-discrimination provision.
The Facts and Submissions of the Parties:
In large measure the parties are agreed on the factual context within which these grievances arise. It is most helpful to simply sketch out the material facts relevant to each grievance with attribution to particular witnesses as needed.
CCR’s are assigned to specific courtrooms to assist the presiding judge. Other personnel assigned to the court are the court service officer and court reporters. It is the CCR that acts as assistant to the judge. They escort the judge to and from court, assist with the carrying of books and the like and generally provide such services as the judge may require including duties in the courtroom.
The CCR is generally expected to report for work at 9:30 am, subject to a direction from the CCR’s supervisor, on his or her own behalf or on behalf of a judge, that a different time is required. There is no question that the vagaries of the court schedule leads to uneven and somewhat unpredictable requirements for CCR’s. Attached as they are to serving particular judges and particular courtrooms, their services may not be required every day or all day. That is the nub of the various disputes between the parties in these matters.
The Ministry of the Attorney General has interpreted the collective agreement as permitting it to have the CCR’s report for work at 9:30 am. At that time each receives his or her assignment to a judge and courtroom. They attend before the judge and assist so long as there is work to be done. Generally, on the close of that judge’s court duties for the day, the CCR’s duties are complete. They are given an extra ½ hour to complete any administrative tasks. That situation may result in the CCR being provided with less than seven and one-quarter hours of work per day. The Ministry only pays the CCR for the time actually worked. The Union says that once a CCR attends at work they should thereby be considered to be “scheduled” for the day and entitled to 7 ¼ hours pay, irrespective of the time actually worked. The grievances dealt with in this decision may be divided for convenience into process and content issues. I will first deal with the process grievances, being those matters that arose secondarily from the difference between the parties as to the right of the CCR’s to 7 ¼ hours pay no matter how long they actually work.
The Stand-by Grievances
Matters scheduled for hearing may settle and leave a CCR with no assignment for the day when they report for work at 9:30 am. The supervisor then may ask the CCR to “stand-by” in the event that their services are needed elsewhere. The CCR is then kept for up to two hours. If they were not needed, they would be paid two hours wages and released for the day.
In grievances 12 and 13 objection is raised to the characterization of this situation as “stand-by” time. OAD 10 in the collective agreement defines stand-by time as “a period of time that is not a regular working period.” During that time the employee is out of the workplace, but required to be available to receive a call to return to work. The employee is paid “stand by” premium for that inconvenience.
The union’s objection is that the grievor’s supervisor is using the phrase “stand-by” in its vernacular sense rather than as the phrase is meant in the collective agreement. There is no merit to these grievances. The request that someone “stand-by” during a regular working period is a reasonable and conventional use of the English language and does not amount to a violation of the collective agreement. It should be noted that the union is not making a claim for stand-by pay, since the employee is being paid for at least two-hours while waiting to be given a work assignment. The objection is that the employer uses the words “stand-by” when asking the CCR to wait for a work assignment. Although there is some potential for confusion, it is not a violation of the collective agreement. The claim for relief set out on the face of the grievances is that the manager be disciplined and apologize for asking the grievor to “stand-by”. Between them the grievances claim $1,550,000.00 in damages. Those grievances are dismissed.
Grievances Arising from the Grievor Filling out his Attendance Sheets
The heart of the union’s case is that when a CCR reports for a day’s work they ought to be considered as scheduled to work 7 ¼ hours that day. They should be paid for the full day rather than the time actually worked if less than 7 ¼ hours. The grievor made that understanding known to the employer and has filed grievances claiming the unpaid hours. Those grievances are dealt with below as “content” grievances. He also began filling out his time sheets to show 7 ¼ hours, even on days that he actually worked fewer than 7 ¼ hours. The grievor says that he was harassed by the employer for asserting his right to be paid for 7 ¼ hours on every day he reported to work. He also says that the employer exhibited an anti-union animus in its dealings with him on these issues. Grievances 7, 15, 16 and 17 deal with these allegations.
Grievance 7 alleges that the grievor’s supervisor at the time, Bev Eldridge, exhibited an anti-union animus at a meeting held July 14, 1998 to discuss the grievor’s practice of filling in 7 ¼ hours on his timesheet rather than his actual hours worked. The grievor testified that in the course of that meeting he was told to fill in his actual hours worked. He was also told that he would be reprimanded if he continued to tell his co-workers to fill in 7 ¼ hours rather than the actual number of hours they had worked. The union said that the grievor, as a steward, was entitled to advise bargaining unit members of their rights and it was a violation of article 3.2 to prevent him from doing so. Article 3.2 reads as follows:
3.2 There shall be no discrimination or harassment practiced by reason of an employee’s membership or activity in the Union.
There can be no doubt that a union steward is entitled to advise bargaining unit members of their rights. Further, where rights are thought to be infringed, it is appropriate to file a grievance. However, in these circumstances, the evidence is clear that the employer knew of the grievor’s view regarding payment for hours not worked, disagreed with that view and instructed the grievor as to how he was to fill out his attendance sheets. Further, the grievor was counseled to stop telling his fellow workers to fill out their attendance sheets contrary to the employer’s instructions. In my view it was not a breach of article 3.2 for the employer to tell the grievor to cease and desist from that conduct. It was appropriate for the employer to fairly put the grievor on notice that he might be reprimanded if he did not stop. It is trite that an employee is to follow the employer’s lawful orders; that is, “act now, grieve later.” The union does not complain that the direction given to the grievor to mark down only his actual hours of work was a violation of the agreement. He was required to comply with the employer’s directions until the issue was resolved with or without arbitration. The same approach was required of all employees and the employer simply further required that the grievor not give contrary instructions to his fellow employees. It was not a violation of the agreement for the employer to tell the grievor to stop encouraging his co-worker’s to disobey the employer’s orders regarding the way they were to fill out the attendance sheets. Grievance 7 is dismissed.
Grievances 15, 16 and 17 also involve the dispute as to how to fill out the attendance sheets. These grievances flow directly from a letter to the grievor dated December 18, 1998. That letter provided a chart that compared the grievor’s hours as set out in the attendance sheet to the hours actually worked. The number of hours worked was calculated on the basis of the number of hours that the courts to which the grievor was assigned actually operated. Grievance 15 complains that it was a breach of article 3.2 for the employer to have altered his hours on his attendance sheet without prior consultation with him. Grievance 16 complains that the letter itself is unjust discipline. Grievance 17 complained of the manner by which the letter was delivered to him.
The history of this aspect of the matter includes a letter to the grievor dated January 6, 1997 from the Court Services Manager, Huguette G. Malyon. The grievor had previously complained that a start time had been changed on his sign-in sheet without his authorization or notification. The Court Services Manager agreed that such a practice was unacceptable and various supervisors were so advised. The union relied on that letter as requiring the grievor’s authorization and prior notification before changes could be made to his time sheets in December 1998, some two year’s later. On that basis, it was argued that grievance 15 should be allowed. I disagree. The intervening background is set out in the first paragraph of the December 18, 1998 letter as follows:
On July 14^th^, 1998, Cheryl McCalmont, the prior Acting Manager of Court Operations, discussed with you her concern that the hours of work you had been recording in the daily attendance records for registrars were inaccurate. On August 4^th^, 1998, Ms. McCalmont wrote to you and again informed you that you had been incorrectly recording yours [sic] hours worked as 7.25 and asked you to report only the hours that you have actually work in the courtroom (Attachment #1). I have recently reviewed the hours that you recorded in the daily attendance records for registrars and they again do not correspond with the daily courtroom utilization sheet. You have continued to inaccurately record you hours worked as 7.25, despite Ms. McCalmont’s requests that you cease doing so.
It may well be that the employer’s unilateral changes might result in some inaccuracies. As the grievor testified, calculating his wages based on his time in court may not capture other, valid work assignments that took place after court closed. I also agree that as a general rule an employer ought not to make unilateral changes to an employee's timesheet. Rather, any concern ought to be brought to the employee’s attention for clarification prior to the employer taking action. However, in the circumstances of this case it is clear that the grievor had received explicit instructions that his time sheet was to be filled out showing his actual hours worked. He was not to put down hours he had not worked. In view of his contumacious disregard of the employer’s direction, it was not unreasonable for the employer to estimate his hours.
Grievance 16 alleges that the letter is unjust. The text of the grievance sets out the union’s position as follows:
The employer has violated my rights under article 21 and/or any other clause in the collective agreement which may be applicable. There is no just cause for this letter of discipline. The employer’s past practice is to record my hours according to my utilization sheet. It has already been discussed at length at stage 2 meetings why this is being done. Also there has been no final ruling upon Mr. McGann’s past grievance about this issue. No warning of discipline was given to Mr. McGann verbally or in writing. There was no loss to the employer.
At least part of the reasoning behind the claim that the letter of reprimand is unjust is the assertion that the grievor’s continued practice of putting 7 ¼ hours on his attendance sheet is justified because the employer would change it, and the content, or substantive, issue had not yet been resolved. That is, the grievance seems to be saying that he was justified in what he was doing. In his evidence the grievor said he was told at the second step meeting in July that if he continued to put 7 ¼ hours they would change it. He took that as license to continue putting down 7 ¼ hours. The grievor said that the letter of December 18, 1998 came as a surprise to him because he had been told at the July 14, 1998 meeting he would be reprimanded if he told others to mark their time sheets with 7 ¼ hours. He had not told others to do so, although he continued to mark his own time sheets incorrectly.
There can be no doubt that he had been told on July 14 to put his actual hours of work on his time sheets. He was told again, by correspondence dated August 4, to do so because he persisted in marking them as 7 ¼ hours. Through to December he continued to mark them incorrectly. He did not stop putting 7 ¼ hours until he received the letter of December 18. He said the letter was given to him to show him “the power of the employer” and that the letter “forced” him to change his ways. On the evidence, the letter of reprimand had the desired effect and was a measured response to the grievor’s continued and repeated disobedience. I cannot find that the written reprimand was inappropriate or unjust.
Grievance 17 is against the manner in which the letter of December 18, 1998 was delivered to him. That grievance is also without merit. The evidence is that the grievor’s supervisor attended at the courtroom where the grievor was assigned. She caused the grievor to be made aware that she would like to see him after court closed. She did so by sending him a note through the deputy registrar. There is no evidence that that process was indiscrete in any way. Seemingly, the court sat late, so the supervisor left the letter, in a sealed envelope addressed to him, in the area where the CCR’s fill out their attendance sheets. He was certain to find it there and he did. The envelope was marked either “personal” or “confidential”. The union argued that placing the letter in an open area, accessible by a number of staff, was a form of chastizement against the grievor as a member of the Union contrary to article 3.2.
It is difficult to see any circumstances where leaving a private, sealed letter, marked personal or confidential, in an internal area of the workplace where the grievor was sure to receive it could amount to discrimination contrary to s. 3.2. Certainly here, on the evidence, leaving the letter as it was left for the grievor was benign and not a breach of the collective agreement.
The Content of Substantive Grievances:
As set out above, the main contentious issue between the parties is whether the collective agreement provides that CCR’s only be paid for time actually worked. Grievance 8 raises this issue.
As an unclassified employee, the grievor’s employment is established by individual contracts that are renewed from time to time. Those individual contracts are, of course, governed by the collective agreement. The individual contract indicates that the grievor is covered by a collective agreement, and he is on schedule 3-7. The back of the contract provides the following explanation of schedule 3-7:
SCHEDULE CODE: The schedule code must be completed on all contracts. Schedule codes relate to hours of work and overtime conditions.
Schedule Definition
3-7 * the normal hours of work are 36 ¼ hours per week
4-7 * the normal hours of work are 40 hours per week
6 * the normal hours of work vary in accordance with the requirements of the position but are a minimum of 36 ¼ hours per week
At the heart of the union’s case is the meaning of schedule 3-7 in the context of paragraph 7 of the individual contract, which includes the following remarks:
Irregular hours as required up to 36.25 hours per week.
The union concedes that paragraph 7 is on its face a valid exercise of the employer’s right to prescribe hours of work pursuant to the regulations under the Public Service Act R.S.O. 1990.c. P 47, as amended [see Part V s 29 (1)(l)]. However, paragraph 7 is said to be invalid as contrary to the collective agreement. That is, the collective agreement trumps that regulatory authority.
The provisions of the collective agreement, which the Union relied upon, start with the Salary Schedule of the Office Administration Bargaining Unit, of which the grievor is a member. He is classified as an OAG 6, and by that Salary Schedule is said to be placed on “Hours of Work Schedule” 3-7. Article OAD 2.1 defines the schedule as follows:
OAD2.1 SCHEDULE 3 and 3.7
The normal hours of work for employees on these schedules shall be thirty-six and one-quarter (36 ¼) hours per week and seven and one-quarter (7 ¼) hours per day.
It is concede by the Union that OAD 2.1 technically does not apply to unclassified employees. Articles 30.1 and 31.16 of the central agreement say which provisions of the collective agreement do apply to unclassified employees and OAD 2.1 is not one of the listed articles. The Union says that there is no other definition of schedule 3-7 in the collective agreement. Accordingly, the allocation of unclassified OAG employees to schedule 3-7 in the Salary Schedule must rely on OAD 2.1 for its definition. There is no other definition, and identical words must be given identical meaning. Therefore, the union says that the grievor’s normal hours of work must be 36 ¼ hours per week and 7 ¼ hours per day.
The Union argued that the issue here is what hours per day the employer may schedule, not the hours per week. It is open to the employer to schedule irregular hours per week, but not per day. Various provisions of the collective agreement were said to be consistent with, and thereby supportive of, that proposition. Article 31.3.1 (d), the overtime provision, talks of regularly schedule work days, not work hours. Article 31.4 the reporting pay provision, permits being scheduled for less than two hours and provides for two hours reporting pay if not previously scheduled for less than two hours. Here, the CCR’s are not scheduled for some number of hours. They are not scheduled for any hours at all. Other provisions, such as stand-by pay and on-call pay apply to unclassified staff such as the CCR’s. Those provisions would permit the employer to staff the courts without unilaterally restricting their daily hours.
The Union also said that the employer may vary the schedule of 7 ¼ hours in limited circumstances. Here the employer was said to have imposed a new set of “normal hours” which is no schedule at all. Further, the Union relied on two policy documents, distributed to employees, dated December 1994 and April 1997 respectively, the latter of which includes the following:
Staff Work Hours
Working hours of staff are from 8:30 a.m. to 4:45 p.m., unless:
- specifically arranged with manager and 7 ¼ hours per day of 36 ½ hours per week is adhered to;
- staff is unclassified Court Support Staff (Court Reporters, Court Registrars & Court Services Officers) – starting time may vary from 8:30 a.m. to 9:30 a.m.
Emphasis must be placed on providing adequate service to the public at all times during regular office hours.
The Union submitted that the employer’s policy document was consistent with the Union’s interpretation of the collective agreement that 7 ¼ hours per day are “normal working hours.”
In summary, the Union said that the grievor has been given a schedule, being schedule 3-7. That schedule states that the normal hours of work are 7 ¼ hours per day. The grievor’s individual contract is consistent with the collective agreement but is being implemented by the employer contrary to the collective agreement. That is, the collective agreement permits irregular hours per week but not per day. Although a normal schedule is not a guarantee of hours, where a normal schedule is provided, the employer is not allowed to impose a new schedule or no schedule at all. There are collective agreement provisions that permit flexibility for the employer, which have not been adhered to. Finally, the present arrangements impose unfairness and unpredictability on the unclassified CCR’s.
The employer argued that the grievor was appointed to the unclassified service under s. 8 of the Public Service Act. The evidence was said to clearly establish that the grievor is a member of group 1 of the unclassified service pursuant to regulation 977, s.6, since he is employed to work on an irregular basis due to the unpredictability of the court system. The need for CCR’s is a function of how busy the courts are on any given day. Staffing is simply not predictable.
As to the collective agreement, the Employer submitted that article 31.16.2 sets out the list of articles in the collective agreement that apply to unclassified staff, and OAD 2.1 is not on that list. It would simply be incompatible with the collective agreement to give the grievor the benefit of OAD 2.1 when it is specifically not applicable to the unclassified staff. Accordingly, nothing in the collective agreement gives the grievor “normal hours of work.” Further, the contract signed by the grievor on hiring, and renewed from time to time, also evidences the shared understanding that the hours of work were to be irregular. It indicates that he is a part-time, group-one employee in the bargaining unit. The individual contract also indicates that “the rate of pay is in accordance with the scheduled hours of work”, which is a reference to the salary schedule. That parallels article 31.2.1, which provides that unclassified employees are paid the same rate as the equivalent civil service classification. That is, there is only one salary schedule, which the grievor accesses by reference. The collective agreement therefore provides that the grievor’s rate of pay is that of the equivalent civil service classification, being schedule 3-7. The grievor’s access to the benefits of schedule 3-7 is limited to salary equivalence. That is, the rate of pay, and when and how overtime is calculated.
This Board’s jurisdiction is to arbitrate all differences between the parties arising from the collective agreement. The Union emphasized that pursuant to article 22.14.6 the Board has no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement.” In my view, to allow this grievance would be contrary to article 22.14.6.
For the Union to be successful, the Board must find that the grievor is covered by OAD 2.1, notwithstanding that article 31.16.2 does not include OAD 2.1 in the list of articles applicable to unclassified employees. To make OAD 2.1 applicable the Board would in effect be adding it to article 31.16.2, contrary to article 22.14.6. In the Union’s submission, the combined effect of the individual contract of employment and the collective agreement have already indirectly added OAD 2.1 to the article 31.16.2 list by putting the grievor on schedule 3-7, which is defined only by OAD 2.1. The Union says that if the Board is to understand the import of schedule 3-7, it must have reference to the only place it is defined, being OAD 2.1. In its careful and thoughtful submission the Union urges that it would be an alteration of the collective agreement to deny the grievor access to that definition of schedule 3-7.
In effect, the Union is attempting to do indirectly what the list in 31.16.2 expressly denies it.
The better interpretation of the collective agreement harmonizes the clarity of the list in article 31.16.2 and the seemingly contradictory inclusion of the grievor on schedule 3-7. The bargain set out on the individual, unclassified agreement signed by the grievor is clearly for a job with “irregular hours as required up to 36.25 hours per week.” That is, the grievor understood at hiring that his was a part-time job with irregular hours. Nonetheless, if the collective agreement were to give him a better benefit, it would prevail. However, it does not.
Under article 31.2.1, the wage rate is that of the “equivalent civil service classification.” That applicable to the grievor is OAG 6. That classification has an established wage grid and is on schedule 3-7. By virtue of article 31.16.2, the grievor is not entitled to the normal hours of work set out in OAD 2.1. However, by virtue of article 31.1, various wage-related provisions are applicable to the grievor, including overtime, reporting pay, holidays etc. In the case of overtime, it is necessary to determine when overtime is payable, for example after 7 ¼ hours or 8 hours per day. For the classified staff, that is determined by the schedule they are on. For schedule 3-7 employees it is 7 ¼ hours. For unclassified staff, they are in a category equivalent to schedule 3-7 for purposes of wage calculation. However, that does not put them on schedule 3-7 for purposes of “normal hours of work”, which is expressly excluded by 31.16.2. Although identical words in a collective agreement should be given the same meaning (i.e. schedule 3-7 in the salary schedule and in OAD 2-1), there is a clear indication in the article 31.16.2 list that the parties intended otherwise. Effect must be given to that clear intention. Nor does the policy document alter the clear intention of the collective agreement. Even on its face, that document contemplates the unclassified staff routinely working less than 7 ¼ hours because of their adjustable start time.
Accordingly, the grievor’s allocation to the equivalent of schedule 3-7 can be seen to have utility and applicability as a category for determining wages, overtime etc. while maintaining the integrity of the list in article 31.16.2. Further, such a reading is consistent with the grievor’s understanding when he was hired that his job was part-time with irregular hours up to 36 ¼ hours per week. Therefore, grievance 8 is denied as regards its claim that OAD 2.1 applies to unclassified staff. There is nothing in the collective agreement that overrides the clear intention of article 31.16.2 to exclude the application of OAD 2.1 from unclassified employees.
Grievance 8 also makes a claim pursuant to article 41.7.1 for payment of percentage in lieu of benefits. It is agreed between the parties that this claim is covered by the decision in OPSEU (Clapperton et al) and Ministry of the Solicitor General and Correctional Services. GSB 0410/97 et al (99-03-16, Petryshen).
The Employer said that the grievor had been paid pursuant to the decision in Clapperton and undertook to make any adjustments should there have been an error in its calculations. I will remain seized in the event of any outstanding dispute regarding compensation in that regard.
Grievance 8 also alleged a breach of article 45.1, which reads as follows:
45.1 As soon as practicable following the end of each quarter, every employee shall be advised of the number of vacation and attendance credits to which he or she is entitled.
The Union submitted that article 45.1 is clear and applies to unclassified staff by virtue of the list in article 31.16.1.
The Employer submitted that the grievor is not a full time employee and would not have accumulated any leave credits to report.
The parties admitted into evidence exhibit 30, a report of the grievor’s hours prepared by the employer. That, coupled with the grievor’s more general evidence, confirms that there were weeks in which the grievor worked 36 ¼ hours.
Article 31.8.1 provides that employees who work full-time weeks in a calendar month earn the attendance credit. If the grievor did so, he is entitled to the credit, and, even on the employer’s submission, if he has accumulated credits he is entitled to a leave credit report.
Articles 45 and 31.8.1 are raised as part of grievance 8 and as part of grievance 12. In view of the parties’ consent to the late admission of exhibit 30, and the Union’s reservation of the right to review the grievor’s hours for accuracy, I will remain seized of these aspects of grievances 8 and 12.
Grievance 9
This grievance deals with the grievor’s lay-off on August 18, 1998. Historically, the courts have been less active in the summer months. Accordingly, the employer would ask the employees if they wanted to work for the summer or be laid off. That is, employees would volunteer to take lay-off. Those who did not want to be laid off for the whole summer would be asked to take either July or August off and would be kept on for the other month to share the available work. Since that lay-off was due to a shortage of work, a Record of Employment was issued and those laid-off could apply for Employment Insurance benefits. In 1998 the grievor met with three managers and the local president in an effort to clarify the lay-off procedure. The grievor was of the view that lay-off ought to be by seniority. Mr. Kisko was a group leader at the time and was among those who met with the grievor. Indications were that the summer of 1998 would be particularly slow. He said the purpose of the meeting was to decide who would work which month of the summer. He wanted to follow the past practice of asking the employees which month they wanted off. The grievor wanted to allot it by seniority. Mr. Kisko disagreed with using seniority because the pattern throughout the year was to divide the work. Also, senior people were the ones who preferred to take the summer off. They decided to put the names in a hat and draw the names to assign people to each month.
The grievor also noted in his evidence that a number of new hires started in the summer of 1998. Mr. Kisko and Mr. Myers, the Local Union Vice President, testified that there were newly hired employees who were trained by way of job shadowing. That is, none of the new hires took work from the pool of work available to the regular employees.
Seemingly, the matter of summer lay-off became an issue in 1998 because of a change proposed by the employer. Paul Myers summarized the status of the matter in his memo to Michael Cash, Court Services Manager dated May 29, 1998, in part as follows:
This memo is being written to respond to the meeting held between Ms. Micheline Seguin, Manager of Civil Staffing and Registrars and C.S.O.’s on May 28, 1998.
At the meeting, the workers were informed that they may be called into work this summer, even if it was for one day a week. I find this comment creates a great deal of anxiety among workers. The Union has already given Management a copy of a 1995 agreement, whereby management recognized the courts have a precipitous decrease in work volume during the summer. Layoffs of staff are in the best interest of both the workers and management. The memo states the workers should receive their records of employment when there is a lack of work.
This grievance against the summer 1998 lay-off alleges that there was an anti-union animus in the arbitrary method of choosing names out of a hat. The anti-union animus was said to have arisen because the result of that process was the union steward, being the grievor, was laid-off and was thereby unavailable to his fellow employees.
The Union is not attacking the lay-off per se, rather the attack is against a process which resulted in the lay-off of the steward.
Given that the process was arbitrary, it cannot be said that there was an anti-union animus. As to the arbitrary procedure, it seems to have resulted from the grievor’s objection to the work sharing approach used in the past. Further, there is no super-seniority provision to protect stewards from lay-off. It is not suggested that the Employer was required by the collective agreement to use seniority in laying-off due to the summer shortage, and it was unwilling to do so for the reasons given by Mr. Kisko.
In all of the circumstances, there was no anti-union animus in the summer 1998 lay-off. Grievance 9 is denied.
Grievances 11 and 14
These grievances allege that the grievor was not paid for his attendance at various step meetings to discuss grievances nor for attendance at the GSB. The Union concedes that he was subsequently paid for his actual time spent at the meetings. However, on some occasions the meetings were scheduled on days he was on lay-off. The Union said that he ought to have been paid 7 ¼ hours for those days for the same reasons advanced above regarding “normal hours of work.”
It is not necessary for me to deal with these matters, as they are moot as far as liability is concerned. The Employer has conceded the point by virtue of its payment. There is no indication that it takes any position other than that the grievor is entitled to be paid for the time claimed. I will remain seized of compensation issues in the event that there is a dispute regarding the amounts paid or owing.
As to the claim for 7 ¼ hours for some of those days, that is denied for the reasons set out above. Finally, although the grievances allege anti-union discrimination, those claims were abandoned.
Summary
As set out at the beginning of the decision, the grievor has 19 grievances before the Board. It was agreed that grievances one through five, eighteen and nineteen be adjourned to be dealt with subsequent to the release of this decision. For the reasons set out above, the remaining grievances have either been settled by way of payment, withdrawn or dismissed, with the exception of aspects of grievance 8 and grievance 12 relating to leave credit reports and attendance/sick leave respectively. I remain seized of those matters pending clarification of the grievor’s past hours of work. I also remain seized of any compensation issues arising from the grievances settled by way of the Employer conceding the matters through payment of monies claimed.
Dated at Toronto, this 18th day of January 2001.