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HomeMy WebLinkAbout1986-1199.Medland.88-05-17Between: -_-.---_ IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (P. Medland) and Before: ------- For The Grievor: -------------.--- The Crown in Right of Ontario (Ministry of Correctional Services), For The Employer: ------------__--- Date of Hearing: ------__----__-- B. Kirkwood Vice-Chairperson P. Taylor Member W. Lobraico Member M. Cherntiy COUl-iSf?l Gowling & Henderson Barristers & Solicitors J. Benedict Manager Staff Relations and Compensatibn Ministry of Correctional Services Dece&er 8, 1987 1199/86 Grievor 'Employer Page 2 DECISION The parties presented an agreed statement of facts as follows: 1. Mr. P. Medland is employed as a correctional officer at the Toronto East Detention Centre, Scarborough, Ontario. 2. Mr. Medland is covered by the current collective agreement between Ontario Public Service Employees Union and The Crown in Right of Ontario with the term January 1. 1986 to December 31,1988., 3. Correctional officers work a rotating shift schedule which includes three main shifts: i) Morning shift - 06:45 hrs to 15:15 hrs ii) Afternoon shift - 14~45 hrs to 23:15 hrs iii) Moming shift - 2245 hrs to 07: 15 hrs 4. Among the reguhxly scheduled shifts, Mr. Medland has recently been required to work on the afternoon shifts on July 26, 1986, September 2.1986, and September 8, 1986. Following an eight hour break, Mr. Medland then worked eight hours of overtime on the morning shift and then, immediately after worked a regular afternoon shift. 5. Finally, Mr. Medland received payment for his overtime hours in accordance with article 13. No further evidence was presented. The grievor is claiming premium pay for his regular afternoon shift on the basis that his regular afternoon shift fell within twelve hours of his previous shift and accordingly he should be renumerated at the premium rate accotding to article 10.2 of the collective agreement which states: “Every reasonable effort shah 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) hour period”. Page 3 The union bases its position on the interpretation of “previous shift” which is the reference point for counting the hours from which premium pay would be paid. The union’s counsel submits that as the parties &d not refer to “regularly scheduled shift” or “previous shift other than an overtime shift” when drafting the collective agreement, that “previous shift” refers to~the overtime shift which the grievor completed from 06:45 a. m. to 15:15 p.m. just prior to the shift for which he received payment at straight time. Therefore as the grievor’s previous shift was the ovenime shift, the regular shift that followed fell within the next twelve hours and is be paid at the premium rates. The employer argued that the Board also had to consider applying articles 13 and 2 1.1 of the collective agreement in addition to article 10.2. Article 13.2 and 21.1 state as follows: “13.2 In this Article, “overtime” means an authorized 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”. The employer argued on the basis of the m (G.S.B. #1339/84) decision which referred to the w (GSB. #74/77) and Muruhv (G.S.B #593/83) decisions that the period of time worked, which was compensated at overtime rates and at the straight time rate is not to be considered as two shifts, but one shift. Therefore under this interpretation, the employer’s view is that the “time for completion of the previous shift” in this case is 23:lS p.m. on each day in question, and therefore, the hours worked for which regular pay was given do not attract premium pay as the time falls outside of the twelve hours from the completion of the employee’s previous shift. The employer claims that in order for the hours worked at straight time to receive premium pay, it requires the Board to conclude that the time worked for which overtime was paid and the time worked for which payment was made at the regular rate were two shifts, which is contrary to the Murohe (supra) and h (supra) decisions. Alternatively, if the last shift worked was the regular shift ending 23:15 p.m. the shift from 6:45 to 1515 p.m. was already paid at overtime rates and as no duplication nor pyramiding is permitted under article 21 there is to be no further compensation. Accordingly, in the employer’s view the grievor had been compensated appropriately and the collective agreement has not been violated. The employer further argued that on the basis of the m case (G.S.B. #237/81) there should be no compensation paid for the shifts sought as the times referred to within the grievance were outside the 20 days prior to tiling the complaint. Page 4 In the &&p& (supra) case, which was affirmed by the Divisional Court in an unrepaired decision dated January 21, 1986. the Board reviewed a situation in which the grievor worked a regular shift, after which he was assigned to work overtime and after an eight hour break worked his regular shift The Board accepted the union’s argument that the second regular shift was to be- paid at the premium rate as it fell “within twelve hours of the completion of the employee’s previous shit” which was interpreted at pages 5 and 6 of the decision to mean when the actual period of work ended; not some notional point of time when straight time ended and overtime begm. Thisposidonis in fin-3 with caS?S Such as Re Mfik an,j Bread -------- _____ l)rivers, zal 647 and Silverwood l=dd.eS Ltd. (1969) 20 L.A.c. 406 (Weatherhill) in ---__--____ w&h a 'hiff extended by 0~erti111e hOUS WAS still considered m k paxt of the same sm. The &Q&Y (supra) decision considered the &&&.I (supra) decision in which the Board put its mind to the interpretation of what is meant by a shift in the context of article 10. We find, as did Gail Brent in the a (supra) decision that the && (supra) decision is consistent with the &&&y (supra) decision. As Gail Brent aptly analyzed the two cases at page 10 of her decision: “The ,%lverwood (supra) case which was nfnnd to in both the Elprin and m (sup@ decisions held, at page 409: In our view, ovettirm 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 me overtime hours. . . . That is the reasoning which the Board in &&-t&t (supm) 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 amacted to the proposition that a “shift”, which was extended by overtime would include both the “previously scheduled regular” hours and the overtime hours. The Board in Elprin did not find that the inclusion of overtime hours which extended a regularly scheduled shit as part of the shift was inconsistent with the meaning of Article 10.2. The .Boatd in JvIurnhy (sup&, when faced with a fact situation where a previously scheduled regular shift was extended by overtime, did not fmd 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 &&I and Murnhv (supra) are in any way inconsistent with one another or that me latter decision in any way ignored the rationale of the former. We are not convinced that the &&&y (supra) decision is “manifestly erroneous” or “clearly wrong” in holding mat where a previously scheduled regular shift is extended by overtime hours all of me hours actually worked become the “employee’s previous shift” for the purpose of Article 10.2”. Page 5 The-decision is of assistance in the interpretation of article 10.2 &this case. As in w (supra) and as in Bateman (GSB. # 2177) at pages 8 and 9, this Board fmds that: “...we are of the view 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 interpretation 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. . ..I’. Therefore, although the facts is this case are slightly different from the m (supra), Morin (supra),and &hrrohy (supra) decisions and we did not find that the interpretation reached by the Boards in the m (supra), &rjg (supra),and Muruhv (supra) decisions manifestly wrong, we .._ find that in this situation the shift is to be considered as an entire, unit of time which would include the regularly scheduled hours of work and the overtime. As we find that a shift includes the unit of time that constitute’s a days work as extended by overtime then it does not make a difference in this context whether the overtime precedes or follows the hours worked at straight time. The period of time worked is not to be broken into shifts dependent upon the rate at which the time worked is paid. Therefore, the completion of Mr. Medland’s previous shift commences from 23:15 p.m. and therefore the time in which the grievor was paid at the regular rate on the following day falls beyond twelve hour period starting at 23:15 and therefore does not attract premium pay. He has already been paid at the overtime rate for the shift which falls within the twelve hour period and therefore under article 21 cannot receive a duplication of compensation. DatedatToronto,this 17th day of day, 1988. B. Kirkwood, Vice - chairperson - A, -&? 4&@&q F. Taylor, Member /A%ckLA Hh W; Lobraico,, Membe;: