Loading...
HomeMy WebLinkAbout1986-0566.Klonowski.88-05-17SETTLEMENT IN THE MRTTEH OF AN AKSITHATION Under TXE CROWN EMPLOYEES COLLECTIVE BAKGAINING ACT Before Between: ------- OPSEU (Klonowski) and Grle"0.r The Crown in Hiqnt of Ontario ir3inistry of Correctional Services) Before: ------ 501 The Grievor: --------------- i-or me Em$lofer: ---------------- ilearinq Dare: ---__------- 1.C. Sgrinqate Vice-Chairman S.K. Hennessy Member P1.r‘. U’Tcole id e m 0 e r S.T. Goudge Gowling and rienderson Barristers and Solicitors T. ~nchony tieqional Personnel Xdministracor lvliniscry of Correctional Services OctoDer 1, 1987 -2- Decision lly scheduled to deal with The hearing in this matter was origina four grievances filed by the grievor. At the commencement of the hearing, however, we were advised that the parties had agreed to "put over" two of the grievances, namely those in file Nos. 71/86 and 73/86. We were also advised that the. parties had settled the grievance in file No. 567/86. Accordingly, this decision addresses the merits of only one of the grievances, namely that in file NO. 566/86. The grievor is a correctional officer employed at the Maplehurst Correctional Centre. Generally he is scheduled to work one of the fol 1 owing shifts, namely 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:OO p.m. and 11:OO p.m. to 7:00 a.m. From time to time he also works .an extra eight hours on an overtime.basis. Depending on the circumstances, he might either be asked if he wants to perform the overtime work or directed to do so. The extra time is paid for at one and a half times his regular rate. The grievor contends that he is also entitled to be paid at one and a half times his regular rate for any regularly scheduled hours that are within 12 hours of when he last performed overtime work. The relevant provisions of the collective agreement provide as follows: 10.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and tw~enty(120) hours in advance of the starting __ ‘- .+ '- 3 - _\ time of the shift as originally scheduled. If the employee concerned is not notified one hundred,and twenty (12Or hours in advance he shall be paid time and one-half (1 l/2) for the first eight (8) hours worked onthe changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control. 10.2 Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however, that if an employee is required to work before twelve (12) hours have elapsed he shall be paid time and one- half (1 l/2) for those hours that fall within the twelve (12) hours period. . . . 13.2 In this Article "overtime* means an authorised period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. . . . 21.1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this agreement. These provisions were considered by the Board in Morin 74/77 (Adams). Mr. Morin was asked to report to work on his regular day off. Pursuant to this request he worked from 11:OO p.m. on March 13, 1977 to 6:30 a.m. on March 14th. He was regularly scheduled to work, and did report to work, at 4:00 p.m. on the 14th. Mr. Morin was paid at time and a half for the extra shift. He also claimed payment at time and one-half for the period between 4~00 p.m. and 6:30 p.m. on March 14th, in that it came within 12 hours of when he was last at work. In assessing the merits of the claim, the Board determined that the case turned on the meaning to be given to the phrase "the employee's previous shift" in Article 10.2. After considering two other possible interpretations, the Board concluded that the - phrase referred only to an employee's previously scheduled regular shift. Such an interpretation results in Article 10.2 being a . -4- constraint only on the scheduling of regular hours of work. - Board's reasoning in the Morin award was as follows: The third possible meaning is that the phrase "the employee's previous shift" is a reference to the employee's previously scheduled regular shift as found in the posted shift schedule referred to in paragraph (10.2) which for Mr. Morin was Thursday, March 10, 1977 - 4 p.m. to 12 midnight. If this is so, no shift assigned to Mr. Morin on Sunday, March 12, 1977 could fall within the twelve hours provided for by paragraph (10.2). This meaning draws its sustenance from the context in-which paragraph (10.2) is found. Article 10 is entitled Shift Schedules and by paragraph 10.1 the employer agrees to the post shift schedules "not less than fifteen (15) days in advance" and further agrees that "there shall ba no change in the schedule after it has been posted unless notice is given to the employee (72) hours inadvance of the starting time of the shift as originally scheduled". Subject to an explicit exception made for changes due to events ,beyond the employer's control, changes that are made with less than seventy-two hours attract time and one-half pay for the first eight hours worked on the changed shift. Clearly then this posting provision has no application to additional or over-time shifts such as the one Mr. Morin worked because the very nature of overtime work is usually unforeseeable and because additional work of this kind does not result in a "change in the schedule" as contemplated by the provision in that the employee continues to work the scheduled hours posted in addition to any overtime shift he may agreean or be asked to work. Given this meaning of paragraph 10.1, the third possible meaning of paragraph (10.2) better emphasizes the relationship between paragraphs 10.1 and (10.2). According to this view the word "scheduling" in paragraph (10.2) refers to the scheduling of regular or normal work hours provided for in paragraph 10.1 and, this being so., paragraph (10.2) is a constraint on the scheduling of regular hours of work and only on the scheduling of regular hours of work. Thus if an employee is asked to work two regularly scheduled shifts without twelve hours of rest he is entitled to be paid the premium provided for in paragraph (10.2). Or stated another way, the plirase "the employee's previous shift" can only be a-reference to a previous shift that had been scheduled The -5- within the meaning of paragraph 10.1 and, according to this view, paragraph 10.1 applies only to the scheduling of normal or regular hours of work. A fortiori "the employee's previous shift" musy be a reference to his previously scheduled regular shift. The next relevant case -was Murphy 593/83 (Palmer). Mr. Murphy worked his regular shift from 11:OO p.m. on June 25, 1983 to 7:15 a.m. on June 26th. He was then assigned to replace an ill employee by working on an overtime basis from 7:00 a.m. until 3:00 p.m. He subsequently worked his regularly scheduled shift which commenced at 11:OO p.m. on June 26th. Although not clearly stated in the award, it appears that Mr. Murphy claimed payment at time and a half for the first four hours of his regularly scheduled shift on the,26th, relying on the fact .that they were within 12 hours of when he last completed work. The Board upheld his~claim, reasoning as follows: In our view, the language of Article 10.2 is clear in this regard. In our view the key to this are the words "within twelve (12) hours of the completion of the employee's previous shift." We accept the view of the Union that the time of the completion of an employee's previous shift relates to when the actual period of work ended: not some notional point where the scheduled straight-time ended and overtime began. Common usage supports this as does the use of the word "work" later in this clause. Again, while we accept the general position that previous arbitral authority should be followed unless manifestly wrong, we do not use (sic) that this applicable in the present case. A review of the authority cited by the Crown, in.our opinion, discloses that the factual basis of these cases is distinguishable from the present matter. The award of the Board in Murphy was the s.ubject of an application for Judicial Review. In dealing with the application, the Divisional Court endorsed the record as follows: -6- Application dismissed with costs. We agree with the conclusion of the Board as to the-meaning of Article 10.2, and that the cases cited to it were distinguishable. There is not ground~~for interference by the Court. A similar claim was dealt with by the Board in Gram 1339/84 (Brent). During October of 1984, Mr. Gram was scheduled to work from 7:00 a.m. to 3:00 p.m. On four separate occasions, however, he was asked to continue working for another eight hours on an overtime basis, finishing at or about 11:OO p.m. When this occurred, the first four hours of his regularly scheduled shift on the following day were within 12 hours of when he last worked. Mr. Gram claimed payment at time and a half for the four hours in question. In support of his claim, the union relied on the award in Murphy. For its part, the employer contended that the award in Murphy was in error, and that the Board panel dealing with that matter had ignored the reasoning and analysis in Morin. The. panel dealing with Mr. Gram's grievance reviewed the reasoning in both the Murphy and Morin awards, and concluded that not only was the Murphy decision not manifestly wrong, but that it was not in conflict with the award in Morin. In this regard, the Board commented as follows: The Silverwood (1969) 20 L.A.C. 406 (Weatherill), case which was referred to in both the Morin and Murphy (supra) decisions held, at page 409: Inour view, overtime may well be part of a "regular shift". Where an employee works on a regular shift, and then continues into overtime, he is still properly said to be working on that shift. The off shift premium, if any, is payable for "all hours worked" on such shift, including the overtime hours. . . . 2, - 7 - That is the reasoning which the Board in Morin (supra) said that it found attractive. While finding that "the employee's previous shift" as used in Article 10.2 must refer to a "previously scheduled regular shift" (see page 11 of that decision), the Board there also indicated that it was attracted to the proposition that a "shift", and by that we take it to mean a "previously scheduled regular shift", which was extended by overtime would include both the "previously scheduled regular" hours and the overtime hours. The Board in Morin did not find that the inclusion of overtime hours which.extended a regularly scheduled shift as part of the shift was inconsistent with the meaning of Article 10.2. The Board in Murphy (supra), when faced with a fact situation where a previously scheduled regular shift was extended by overtime, did not find that the inclusion of overtime hours which extended the regularly scheduled shift as part of the shift was inconsistent with Article 10.2 We therefore disagree with the suggestion that the decisions in Morin and Murphy (supra) are in any way inconsistent with one another or that the latter decision in any way ignored the rationale of the former. We are not convinced that the Murphy (supra) decision is "manifestly erroneous" or "clearly wrong" in holding that where a previously scheduled regular shift is extended by overtime hours all of the hours actually worked become the "employee's previous shift" for the purpose of Article 10.2. We consider that such a finding is consistent with the previous jurisprudence of this Board as well as with the arbitral authority cited to us, and that it is a finding that the language can reasonably and properly bear. Indeed it is a conclusion that this panel can agree with, even though we clearly recognize that that is not the test which should be applied in these cases. The Board then went on to uphold Mr. Gram's grievance. We turn now to the facts of the instant case. On a number of occasions the grievor worked eight hours overtime in add ition to his - 8 - .regularly scheduled shift. The parties have divided these occasions into two separate categories;.' The first category was explained to the Board by way of an example relating to the hours worked by the grievor on April 27 and 28, 1986. On April 27th the grievor worked his previously scheduled shift from 3:00 p.m. to 11:OO p.m. He then stayed and worked the following eight hours on an overtime basis ending at 7:00 a.m. on April 28th. The grievor worked his next regularly scheduled shift commencing at 3:00 p.m. on April 28th. The first four hours of this shift were within 12 hours of when he last worked. The grievor was not paid a premium for the four hours in question. At the hearing, however, the employer indicated it now accepted that it was required to pay the Article 10.2 premium for the first four hours of this shift. The employer further indicated that it was prepared to pay the premium for all similar instances which occurred from and after 20 days prior to when the grievor filed his grievance. The parties continue to disagree as to the applicability of the Article 10.2 premium to the second category of situations. This category was explained utilizing the events of April 19 through 21, 1986 as an example. The grievor worked a regularly scheduled shift from 11:OO p.m. on April 19th to 7:00 a.m. on April 20th. He was next scheduled to work a shift commencing at 11:OO p.m. on April 20th. Prior to him doing so, however, he was called in to work from 3:00 p.m. to 11:OO p.m. on an overtime basis. He was paid at the overtime rate, that is time and a half, for all work done between 3:00 p.m. and 11:OO p.m. Ue was then paid his regular rate for all of his regularly scheduled hours from 1l:bO p.m. to 7:00 a.m. The grievor claims that he should have been paid at time and a half for his regular shift ,) -9- 4 commencing on April 20th in that all of I of the completion of his overtime hours. it was worked within 12 hours Union counsel concedes that to be successful in this case he must overcome the reasoning of the Board in the Morin award. He takes the position that the facts in the Morin award are distinguishable from those in the instant case, in that Mr. Morin worked an overtime shift on a day off, whereas the grievor in this case worked an overtime shift immediately prior to a regularly scheduled shift. Counsel further contends that the reasoning in Morin was "clearly wrong". It makes no sense, he contends, to differentiate between those situations where overtime work is added to the end of a scheduled shift and those where it is performed prior to the commencement of a scheduled shift, for in either case the "12 hour buffer zone" has been breached. In interpreting the relevant provisions of the collective agreement, we are satisfied that we should follow interpretations previously- adopted by the Board, unless of the view that a prior award was clearly wrong. In this regard, we adopt the following reasoning from Bateman 2/77 (Prichard). . ..tie are of the viev that this panel of the Board should not accept or advance a wholly contradictory interpretation of the relevant provisions of the collective agreement in the absence of a demonstration that the interpretation arrived at by an earlier panel is "clearly wrong". . ..That is to say we are of the conviction that where one panel of this Board has adopted an interprstation of a particular clause in the agreement, the parties can not be permitted and should not be encouraged to relitigate that determination unless the prior award is manifestly erroneous. . . . .*. .1 - 10 - In Morin the Board concluded that the reference to shifts in - Article 10.2 is only to regularly scheduled shifts. It reached this conclusion after considering the context in which Article 10.2 is found. The reasoning adopted in that case is neither clearly wrong nor manifestly erroneous. The reasoning in Morin was considered in both the Murphy and Gram awards. In neither award did the Board disagree with the reasoning in Morin. Rather, it concluded that overtime hours worked at the end of a regularly scheduled shift should be considered part of that shift when applying Article 10.2. Given these considerations, we propose to follow the reasoning adopted in the Morin award. The grievor's claim that the Article 10.2 premium applies to his regularly scheduled hours on April 20th and 21st is necessarily based on the contention that the overtime hours worked by the grievor between 3:00 and 11:OO p.m. constituted one shift, and that his regularly scheduled hours of 11:OO p.m. to .7:00 a.m. constituted a second shift. The award in Morin, however, decided that an overtime shift is not taken into account in determining the grievor's entitlement under Article 10.2, since that article refers only regularly scheduled shifts. Accordingly, if the time worked by the grievor is viewed as two separate shifts, the grievor's claim must fail. An alternative approach, one in line with the reasoning adopted in Murphy and Gram, would be to regard all of the hours worked by the grievor between 3:00 p.m. and 7:00 a.m. as a single shift. Unlike the situations. in Murphy and Gram, however, the grievor did not commence a1. - 11 - < work within12 hours of the end of this extended shift. What he did do was work a previously scheduled shift starting on April 19 which ended eight hours prior to the commencement of the extended shift. Accordingly, the grievor may have been entitled to be paid at time and a half under Article 10.2 for the first four hours that he worked commencing at 3:00 p.m. on April 20th. In fact, however, the grievor was paid time and a half not only for those four hours, but for the following four as well. Having regard to the general rule against pyramiding set out in Article 21.1, the grievor was not entitled to any additional payment for the time in question. Having regard to the foregoing, we are satisfied that the grievor was not entitled to any additional payment for the time worked on April 20 or 21, 1986, or in other similar situations. The Board will remain seized of this matter to deal with the compensation owing to the grievor with respect to the first category of situations identified by the parties. Dated at Mississauga this 17th day of May, 1988. Vice-Chairman