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HomeMy WebLinkAbout1987-1569.Kruger et al.88-05-20Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Kruger et al) and The Crown in Right of Ontario (Ministry Of Correctional Services) Before: ------ R.J. Delisle Vice-Chairman I. Thomson "ember A. Staple'ton Member SOT the Grievor: J. Pord --------------- Grievance Officer Ontario Public Service Employees Union r'or the Employer: J.F. Benedict ---------------- Manager Staff Relations Correctional Services Hearing : ------- April 13, 1988 i There are four identical grievances before us. Each of the four employees is a Correctional Officer 2 at the Mimic0 Correctional Centre. The parties are agreed that ruling on the Kruger grievance will settle the other three, Tone, Giovenco, and Johnston. By his grievance, Exhibit 1, Kruger complains that on December 26, 1986, Boxing Day, he worked an overtime shift for which he was paid double time and for which he was entitled by the agreement to be paid triple time. Kruger is a Schedule 4.7 employee and, pursuant to Article 7;2, his normal hours of work are 40 hours per week and 8 hours per day. On December 26, 1986 he worked his regularly scheduled shift, Shift 1, from 6:45 hrs. to 15:15 hrs. He also worked an overtime shift, Shift 2, from 14:45 hrs. to 23:15 hrs. For Shift 1 he was paid 2 times the basic hourly rate for each hour worked and in additi.on received 8 hours pay at the basic hourly rate. For Shift 2 he was paid 2 times the basic hourly rate for each hour worked. The grievor maintains he was improperly paid for Shift 2. The grievor claims, in his first argument, that pursuant to Article 19.1 and 19.2 he should have received for Shift 2, 2 times the basic hourly rate for each hour worked plus 8 hours at the basic hourly rate. In the alternative he argues that coupling Article 13.1 with Article 19.1 and 19.2 he should have received 2 times the basic hourly rate plus 14 times the base rate for each hour worked on Shift 2. The Collective Agreement provides: 13.1 19.1 19.2 2 The overtime rate fork the purposes of this Agreement shall be one and one-half (li) times the employee's basic hourly rate. Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (71), eight (8), or the number of regularly scheduled hours, as applicable. In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (71) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one- quarter (71) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. In his ,first argument the grievor maintains that he should have been paid for Shift 2 as he was paid for Shift 1.‘ We are satisfied that this is a misreading of Article 19. In our view Article 19 is quite clear. An employee is entitled to receive, per 19.1, pay at the rate of 2 times his basic hou~rly rate for all hours worked: Kruger worked 16 hours on December 26, 1986 and was paid 2 times his basic hourly rate for each of those hours worked. Article 19.2 states that in addition to the payment provided for by 19.1 the employee shall receive 8 hours pay: Kruger received that holiday pay. The argument based on Article 19 accordingly fails. Our interpretation of Article 19 ,iS consistent with-this Board's earlier decision, Re Tocher, 149/78 (Weatherill) and with Re Windsor Western Hospital (1976) 13 L.A.C. (2d) 78 '(Weatherill). The grievor's alternative argument is that pursuant to Article 19.1 he was entitled to be paid at the rate of 2 times his basic rate for each of the 8 hours worked on Shift 2 and that 3 pursuant to Article 13.1 he's entitled to also be paid for those hours at the rate of 14 times. Counsel for the grievor recognizes that with his alternative argument one might attack his position as pyramiding. Article 21.1 provides: There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this , Agreement. Counsel for the grievor however argues that no pyramiding is contemplated here because the two premiums here being'claimed are premiums with different purposes. He relies on Re Municiualitv of Metro Toronto and C.U.P.E., (1984) 13 L.A.C. (3d) 356 (Picher). In that award the arbitrator wrote: While there may be some broad similarities between overtime pay and pay for holidays worked, the inconvenience and sacrifices involved in each situation are treated separately under the collective agreement and are of a distinctive nature. Therefore, to receive both premiums would not be to pyramid benefits. It would, rather, reflect the payment-of separate benefits coincident in time. With the greatest respect for this learned arbitrator we have difficulty following this reasoning, and prefer instead that found in Re Associated Freezers of Canada Ltd. and Teamsters Union, (1979) 23 L.A.C. (2d) 40 (Burkett): The statutory holiday premium is...an overtime premium designed to compensate an employee for working beyond his normal hours (i.e. for working on a day designated in the agreement as a statutory holiday) and to discourage the employer from scheduling employees to work on these days. The Collective Agreement here contemplates, and the nature of this grievor's duties require, that work take place on a holiday. The two premiums, the holiday rate of 2 times and the overtime rate of l$ times are designed to compensate employees for working 4 abnormal hours and, pursuant to Article 21.1 cannot be pyramided. Aside from the pyramiding section, Article 19.1 itself would deny payment at 11 times in addition to the two times the base rate. The parties have agreed in Article 19.1 that the rate is to be 2 times the base rate "for u hours workedI'. We cannot make use of Article 13.1 to fly in the face of that clear language and declare that for come of the hours worked the rate will be 3f times the base rate. To do so would be to re-write the agreement. The grievance is accordingly dismissed. Dated at Kingston this 20th day of May, 1988. .J. Delisle Vice-Chairman