GSB#2012-0932

UNION#2012-0228-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Chapman et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Thom Yachnin Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Legal Services Branch Counsel

HEARING

November 19, 2013

Decision

MEDIATION/ARBITRATION AWARD PURSUANT TO ARTICLE 22.16

1Initially there were two grievances scheduled to be heard before me, however, at the outset of proceedings counsel confirmed that the individual grievance of Ms. Frances Chapman, GSB #2012-1340, had been withdrawn. Therefore, the only matter before me is a group grievance filed by four supervisory, Ambulance Communications Officers (ACO2s), Ms. Frances Chapman, Ms. Maureen Rettie (now retired), Mr. Greg Chambers and Ms. Rebecca Napier-Andrews. These Grievors were four of the six ACO2s who, when the grievance was filed on April 25, 2012, worked at the Mississauga Central Ambulance Communications Centre (CACC) of the Ministry of Health and Long-Term Care. Their complaint alleges that the Employer breached various provisions of the Collective Agreement but, in particular, the provisions of a Compressed Work Week Agreement (CWWA) entered into between the Union and the Employer to be effective September 6, 2010 and which was renewed for a further twelve month period in November of 2011.

2The substantive issue between the Parties is whether or not changes announced on or about April 12, 2012 to the scheduled rotation pattern as originally implemented in 2010 for ACO2s constituted a violation of the CWWA.

3The parties agreed that the matter before me should proceed by way of the mediation/arbitration procedure stipulated in Article 22.16.2 of their Collective Agreement. In the circumstances, counsel prepared and presented an Agreed Statement of Fact and tailored their submissions to the precise issue to be determined. In turn, I will attempt in this Award to be as succinct as they were in their submissions recognizing that the decision pursuant to the mediation/arbitration procedure is without precedential value.

4The substantive provision of the Compressed Work Week Agreement which is in issue before me reads as follows:

ARTICLE 2 – HOURS OF WORK

2.1 A regular work schedule may consist of eight (8), ten (10) and twelve (12) hour shifts in cycles ranging from eighty (80) hours per employee in two weeks, one hundred and sixty (160) hours per employee in four (4) weeks, two hundred and forty (240) hours in six (6) weeks to three hundred and twenty hours (320) hours per employee in eight (8) weeks. Work schedule attached as Appendix A.

2.2 Article UN5.2 of the Bargaining Unit Collective Agreement shall not apply to employees covered by this compressed work week agreement.

5The Collective Agreement with respect to this group of employees stipulates a normal work week comprised of eight hour days and forty hour work weeks. It will be seen that Article 2.1 of the CWWA contemplates work schedules consisting of eight, ten and even twelve (12) hour shifts and work rotations of up to eight (8) weeks in duration.

6A four (4) week work schedule was attached to the CWWA and it is that specific schedule which the Grievors claim has been breached. When originally implemented in 2010, the Employer followed that particular schedule for the ACO2s as well as for the ACO1s, the dispatchers, whom they supervise. According to the four week schedule an ACO2 would be assigned to supervise one of five platoons of approximately nine ACO1s. During the weekdays most shifts were twelve (12) hours but on weekends the ACO2 shifts were set at eight (8) hours each. This schedule did not identify personnel to be assigned to the various platoons and schedules, rather, it set scheduling patterns for the designated positions. Notwithstanding that, when originally implemented the Employer designated a specific ACO2 supervisor for each platoon and, when the four week schedule renewed itself, the same platoon and the same supervisor were maintained on the identical schedule for the next ensuing four weeks. This pattern carried on for the first year of the CWWA contract and was perpetuated into the renewal of that agreement for the first several months into 2012. Early in 2012, the Employer decided to implement certain changes for the ACO2s alone which precipitated the grievance here.

In particular, the following two changes impacted on the ACO2s:

1. The Saturday and Sunday or weekend eight (8) hour shifts were extended to twelve (12) hours in duration. The eight (8) hour shifts were then moved to Thursday and Friday so that the parameters of one hundred and sixty (160) hours work within the four week period were maintained.

2. The ACO2s, who had until then retained the same repeating four week schedule as a designated platoon, were reassigned to rotate through the schedules of each of the five platoons. Accordingly, an ACO2 no longer supervised the same platoon or group of employees throughout the year. Rather, during each four week schedule period he or she would be assigned to supervise a different platoon which was following a different four week schedule. Accordingly, both the platoon and the ACO2’s schedule would thereafter change every four weeks.

7The Grievors were of the view that the schedule ought to have remained in place as it was originally implemented such that they would continue to enjoy shifts of only eight (8) hours duration on the weekends. Furthermore and more importantly, they took issue with the requirement that they rotate schedules and be assigned to supervise a different platoon during each four week period. They felt their supervision would not be as effective when they lost the consistent connection they had experienced when supervising ACO1s within a single platoon only. Furthermore, the change of schedule every four (4) weeks impacted on their ability to plan their home life.

8The Union did not challenge that the changes were made by management arbitrarily or in bad faith. Furthermore, although the grievors were not satisfied with the reasons advanced by management for the need to make these changes, the Union was unable to assert that the changes were not made for valid business reasons. In particular, the change to the weekend shift from eight (8) to twelve (12) hours was to ensure supervisory coverage during the entirety of the work days Saturday and Sunday. Without that change there had been four (4) hours on each of two shifts during the weekends when there was no supervisory coverage whatsoever. The change from eight (8) to twelve (12) hours provided that additional coverage. On the other hand, the change to shortened shifts on Thursday and Friday were not problematic since there was additional supervisory staff on hand to cover during the weekdays.

9With respect to the rotation through platoons, the Employer was concerned with inconsistent supervision between the various platoons by the different supervisors and sought to stabilize or provide consistent practices with the rotation of supervisory staff. In the manager’s words:

“This schedule change will provide all supervisors with more consistent opportunities for personal growth and development of their skill sets through diverse experiences thereby enabling more consistent messaging to the ACO1 staff.

10In the circumstances, I am satisfied that there were valid business reasons for the changes implemented by management. The issue then is simply whether or not the Employer was within its rights to implement any changes whatsoever to the schedule and/or its practices with respect to the assignment of supervisors on the schedule. Aside from the Agreed Statement of Facts there was no other evidence offered. Indeed, there was no extrinsic evidence concerning any discussions that might have taken place at the time the CWWA was entered into by the parties. Accordingly as already stated, the issue must be resolved by way of interpretation of the CWWA in the context of the Agreed Facts and, of course, the Collective Agreement between the parties.

THE DECISION

11I have taken into consideration the Agreed Facts, the CWWA itself and the attached schedule, the Collective Agreement provisions and the submissions of counsel. In all the circumstances, I am unable to conclude that there has been a breach of the CWWA or the Collective Agreement. Accordingly, the declaration sought by the Union as well as the Order of Compliance it requested will not be forthcoming.

My reasons for these findings are as follows:

1. The language of Article 2 of the CWWA is permissive only. It suggests that work schedules may follow a myriad of possible patterns. It does not specifically identify the four week pattern of one hundred and sixty (160) hours as the only possible scheduling pattern.

2. There is nothing in the agreement itself or in the attached schedule to suggest that the pattern identified there would constitute the one and only schedule permissible pursuant to the agreement.

3. Only Article UN5.2 of the Collective Agreement was specifically eliminated from application with respect to scheduling pursuant to this CWWA. That provision deals only with the duration of time off between the end of one shift and the commencement of the next.

4. There is nothing in the CWWA to suggest that the Employer had abrogated its normal management rights pursuant to this particular Collective Agreement to set work schedules nor is there anything in the CWWA that specifically requires the Employer to follow the attached Schedule and only the attached Schedule. As importantly, there is no restriction in the CWWA upon the Employer’s normal right to assign employees to shifts as required.

12In all the circumstances, it is my finding that the Employer is not and was not bound to follow the Schedule attached to the CWWA without variance. Accordingly, I am unable to find a violation of the CWWA which can be remedied here.

13In any event, had I determined that the Employer was bound to follow the attached Schedule and only the attached Schedule, which I specifically find not to be the case, the only inconsistency which could be identified was the exchange of eight (8) hour shifts on Saturday and Sunday for twelve (12) hour shifts and the corresponding short shifts substituted on Thursday and Friday. Otherwise the pattern in the attached Schedule has been continued to be followed by the Employer. There was nothing on that Schedule identifying specific supervisors with specific platoons. Accordingly, it could not be said that the rotation in assignment of a supervisor from one platoon to another and from one corresponding schedule to another constituted a violation of the scheduling pattern. As I understood the grievor’s concerns, it was this latter rotation which was more important to them than the length of the weekend shift.

14In any event, I did not find that the schedule was binding upon the Employer and, therefore, no relief for the ACO2s could be ordered here.

15In all the circumstances this grievance is dismissed.