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HomeMy WebLinkAbout1987-1769.Dunn.90-01-24EMPLOY.tSOELA CO”RONNE oEL’ONT**,o CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS IN TEE NATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Dunn) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: S. Stewart Vice-Chairperson Ii. O'Regan Member F. Gallop Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: M. Furanna Staff Relations Officer Human Resouces Secretariat Management Board of Cabinet Hearings: November 1, 1989 November 2. 1989 DECISION The grievor, G. Dunn, is employed as a registered nurse on Unit 4-3 at Queen Street Mental Health Centre. In a grievance dated July 4th, 1987 Mr. Dunn alleges that the employer has violated Articles 12 and 13 of the Collective Agreement and requests that his rest period be re-instituted and that he be paid with interest at the overtime rate for additional time worked. The dispute between the parties arises under Article 12 of the Collective Agreement which provides as follows: ARTICLE 12-REST PERIODS 12.1 The present practice for rest periods in each shift shall be maintained. The board heard testimony from witnesses called from both parties as to the practice with respect to rest breaks on Unit 4- 3. To a large extent the evidence was not in dispute. The nurses on day shift on Unit 4-3 at the time Mr. Dunn filed his -grievance took alone-half hour rest period inthe morning and a one hour lunch break. The Union characterised the one hour lunch break as the one-half hour unpaid lunch combined with a one-half hour afternoon break period, a characterization with which the Centre took issue. The Centre's position was that there was no authorised afternoon break and that management policy with respect to breaks allowed employees to only one 15 minute rest break in addition to their half hour unpaid lunch. -2- Mr. Dunn, who has been employed by the Centre since February 1981, commenced working on Unit 2-2 in April 1983. Unit 4-3 was formally Unit 2-2. Mr. Dunn testified that when he commenced working on this unit he primarily worked on the evening shift. He stated that on the evening shift the practice for employees was to take a total of 90 minutes rest break. A one-half hour break would be taken the early portion of the shift and a one half hour supper break and then another one-half hour break after the patients had gone to bed. He stated that this practice was not always rigid and that sometimes nurses would combine their breaks. Mr. Dunn commenced working on the day shift in 1985, remaining on Unit 4-3. He testified that the practice on shift was that people would take a one half hour rest break in the morning a one-half hour rest break in the afternoon as well as a one half hour lunch break. He stated that the nurses found that their lunch break was too short so that they began to combine their one-half hour rest break with their one-half hour for lunch. Thus, the practice engaged in by the nurses at the time the grievance was filed was that a one-half hour rest break would be taken in the morning and an hour lunch break would be taken. The lunch break could be taken wherever the employees wished to take it, whether on or off the premises. -3- Mr. Dunn testified that the nurses often took the full hour break in the cafeteria where they were in clear sight of the Centre's management.personnel, including the Director of Nursing. !The scheduling of rest breaks was recorded on a staff assignment form that was prepared daily for each shift. This indicated which employees took first or second lunch. According to Mr. Dunn's testimony, at the time the grievance was filed the form would only indicate whether the employee was taken first or second break however, he also indicated that previously the actual times of the breaks, which woul d indicate their length,. had been put on the assignment sheet. Mr. Dunn denied any knowledge of any hospital policy which limited rest breaks. In particular, he denied receiving any information from J. Almond, who was his Head Nurse between 1984 and 1987, that the practice of the nurses on Unit 4-3 with respect to breaks was not in accord with the Hospital's po licy. J. Donnelly, a registered nurse who'also worked on Units~ 2-2 and 4-3 between February 1984 and May 1988, confirmed Mr. Dunn's testimony with respect to the practice of taking breaks. Ms. Donnelly had a vague recollection of being advised when she was first oriented that the rest break entitlement was a 15 minute break but stated that the practice was always othewise. 5 -4- L. Cushnie, the Nursing Co-Ordinator of Unit 4-3, has held this position since January 1982. Her position is the first level of management as the Head Nurses on the Unit are in then bargaining unit. Ms. Cushnie has been employed at the Centre for 22 years. Ms. Cushnie testified that she spends very little time on the Unit as she is not directly involved in patient care. She 0btain.s the information that she requires directly from Head Nurses. While she does visit the-Units for which she is responsible she does not spend a good deal of time there. She spends most of her time attending meetings and performing managerial work in her office. She testified that the information she receives from Head Nurses relates primarily to patients and their condition or a particular problem with a patient or staff. She is in daily contact with Head Nurses on a formal basis and has regular meetings with the Head Nurses in her' office. Ms. Cushnie testified that in June 1987 she was speaking with P. Culling, the Head Nurse on Unit 4-3, when, in the course of the conversation, Ms. Culling referred to the "lunch hour". MS. Cushnie questioned Ms. Culling about her reference to the lunch "hour" because her understanding had always been that employees were entitled to one 15 minute rest break and a one- half hour lunch break. Ms. Culling, who had been Head Nurse on -5- Unit 4-3 since February 1987, advised Ms. Cushnie that the practice of the employees on 4-3 was to take a one hour break at lunch time in addition to a 30 minute rest break. Ms. Cushnie expressed her surprise to Ms. Culling about this practice as it did not accord with her understanding with respect to what employees were entitled to. Ms. Cushnie acknowledged in cross- examination that there was no written policy setting out the prescribed rest breaks that she was aware of however she stated she was provided with this information when she was hired and to her knowledge, the policy has never changed. She stated that she conveys this information to nurses that she interviews for hiring. She does not interview all nurses however. Ms. Cushnie testified that prior to her discussion with Ms. Culling she believed that the Hospital's policy was being adhered to. The only departure that she was aware of and had no objection to was allowing the employees the flexibility of adding their 15 minute rest break to their lunch break to provide them with a break that totalled 45 minutes. Ms. Cushnie stated that the Centre has never authorised an afternoon break. She stated that when she was a Head Nurse in 1979 and Lakeshore Psychiatric Hospital i merged with the Centre she was asked about afternoon breaks as apparently this had been a practice at Lakeshore. She stated that she asked her Head Nurse about this and was advised that their was no afternoon break permitted at the -6- Centre and that a 15 minute rest break and a half-hour lunch break was the extent of the breaks permitted. When Ms. Cushnie was advised by Ms. Culling of the practice on 4-3 she instructed Ms. Culling to reduce the break time to 45 minutes. She contacted other members of management who confirmed her understanding of Hospital policy. Ms. Cushnie. received a letter from Mr. Dunn indicating that it was'his view that her instruction to reduce the amount of break time available resulted in a violation of the Collective Agreement. She stated that after receiving this letter a survey was done of all units to determine their practices with respect to rest periods. She stated that there was a considerable deviation from the 45 minute break that accorded with the Centre's policy. After review of the matter by ‘The Centre's management, a memorandum was issued by M. Hakocxy, Assistant Administrator, Nursing, dated July 13, 1987. The relevant portion of this memorandum states fol~lows: The Nursing Department's practice has been to allow one 15 minute paid rest break and one 30 minute unpaid meal break, totalling 45 minutes per 8 hour shift for schedule 4 employees. It has recently come to our attention that -7- several programs have unofficially extended these rest periods and meal breaks, with considerable variation in the amount of time taken. Effective immediately, in order to ensure that all staff members are given equal time for rest period and meal breaks, the official time allowed for combined rest breaks and meal periods will be extended to 60 minutes per 8 hour shift (30 minutes paid 30 minutes unpaid).... In cross-examination, Ms. Cushnie acknowledged that the current position specifications for Nurse Co-Ordinator state that her activities include making rounds of wards daily with the nurse in charge, supervising directly or indirectly the activities of.nurses, and reviewing work assignments with the Head Nurse. Ms. Cushnie stated however, that in practice she and the other Nursing Co-Ordinators did not engage in this kind of "hands on" activities, leaving these matter to their Head Nurses. She acknowledged if she had reviewed the daily work sheets she possibly would have found that the employees were taking rest breaks in excess of that prescribed by Hospital policy. She stated that although she has seen Nursing staff members from Unit 4-3 in the cafeteria, she was not aware of and did not concern herself with respect to the length of time that they were taking for their break. P. Culling, who was subpoenaed as a witness by the Centre -8- testified that she worked at Queen Street between September 1986 and September 1988. When she joined Queen Street she did not receive any instructions with respect to prescribed times for rest and lunch periods. When she commenced work at the Centre she was assigned to Unit l-3, where, she stated, nurses took a 30 minute morning rest break and a 60 minute lunch break. She stated that was a similar practice on Unit 4-3 where she was Head Nurse between February 1987 and September 1988. Ms. Culling confirmed Ms. Cushnie's evidence that Ms. Cushnie was surprised when she heard her refer to an employee's "lunch hour"' She testified that Ms. Cushnie then asked her how long the breaks were that nurses were taking and that Ms. Cushnie advised her that Hospital policy required that breaks be limited to a 15 minute rest break and a one-half hour lunch break. Ms. Culling stated that she understood that the noon break to be a combination of a meal and an afternoon break.. She stated that on occasion, the time of the breaks was recorded on the daily assignment sheet. G. Abrecht, who is presently Assistant Director of Nursing at Queen Street Mental Health Centre, testified that at the time the grievance arose her understanding was that the nursing staff were entitled to one-half hour lunch break and a 15 minute rest break. She stated that this had been the case from the time she -9- was first employed at the Centre. She has been employed at the Centre since 1962 and was a Head Nurse from 1963 to 1970. More specifically, she stated that her understanding of the practice on the day shift was that the one 15 minute rest period was normally taken in the morning however the practice with respect to the combination of the morning break and the one-half hour lunch break was flexible, allowing nurses to combine their rest break and lunch break to'have a 45 minute break at lunch time. Ms. Abrecht testified that she became aware of the policy when she was hired and as Head Nurse she passed along these instructions. She stated that she has been involved in passing this information on when interviewing people. She is involved in hiring at a senior level. She testified that on the unit, it is the responsibility of the Head Nurse to explain the practice to employees. She stated that she does not spend much time on the wards personally. Ms. Abrecht first became aware of variance from the 15 minute and 30 minute policy when she was called by Ms. Cushnie and asked if there had been change from the original policy. She stated that after the survey results were reviewed Nursing management decided that since there was a-wide variance .and considering that 15 minutes was a short rest period, they would allow a total break time of 60 minutes, consisting of one- half hour unpaid lunch and one-half hour break period. -10- J. Almond, who was Head Nurse on 4-3 between January 1984 and February 1987, was subpoenaed by the Centre to testify. Ms. Almond has been employed at the Centre since January 1978 and was first employed as a Staff Nurse. She was the Head Nurse on Unit 4-3 between January 1984 and February 1987. Ms. Almond stated that on Unit 4-3 the practice of the staff was to take a one-half hour rest break and up to a hour break for lunch. During the lunch or rest breaks staff members were entitled to leave the Centre and did not have to advise where they would be. Ms. Almond testified that she understood the official policy with respect to breaks to be 15 minute morning break and one half hour lunch period. She stated that her understanding was that an afternoon period was-not authorised. She testified that she was aware that the practice that she allowed did not conform with the Hospital's authorised practice. She stated that the practice of taking breaks on 4-3 was'in'existence when she commenced her duties as a Head Nurse there and she felt that there was no need to change the practice as it did not generally create any difficulties in terms of the patient care. She stated that when she was a Head Nurse on 4-3 she reported to Ms. Cushnie and never advised her of the arrangements that she allowed. She stated that she consciously withheld the information because she knew that if she told her about the arrangements it would result in a change. Ms. Cushnie never raised any questions about hours of -ll- work or rest breaks with her. Ms. Almond testified that she had discussions with her staff members about the fact that the practice on their ward did not conform with the practice authorised by the Hospital. She stated that she told staff members that if they asked for coverage for an hour at lunch they risked having their hour lunch questioned. If scheduling was tight she stated that she would advise staff members that they would have to take "regulation" lunches or split lunches. She testified that she and the grievor, Mr. Dunn "did discuss the issue" and that she "advised him what was actually allowed." Ms. Almond confirmed Ms. Cushnie's testimony that Ms. Cushnie spent very little time on the Unit and that no member of management staff was located on Unit 4-3. On behalf of the Union, Mr. Lukasiewicz argued that in spite of any "official" policy the Centre may have had, Article 12.1 specifically refers to the practice with respect to rest periods. He submitted that practice should be interpreted as what in fact occurs as opposed to what he characterized as the Centre's intention as to what was to occur. He further emphasized that Article 12.1 refers to the present practice which, he submitted, -12- refers to the practice that existed at the time the Collective Agreement was signed, March 16th, 1987, and that it is that practice that must prevail in accordance with terms of Article 12.1. He argued that the evidence establishes that in March 1987, the practice on Unit 4-3 was that a one-half hour rest break in the morning was allowed as well as a one-half hour lunch break and a one-half hour afternoon break that was to be taken in conjunction with the half hour unpaid lunch period. It was argued that those two half-hour rest periods are protected by the provisions of Article 12.1. Mr. Lukasiewicx argued further that even if the Board were to accept that members of management were truly unaware of the practice on Unit 4-3 with respect to rest breaks and lunch breaks (a conclusion that he questioned in light of the open practice), he submitted that the fact that management was unaware.of the policy was not relevant. Mr. Lukasiewicz pointed out that by virtue of her job specifications it was Ms. Cushnie's respnsibility as a member of management to review.the work assignments. While management may have chosen to delegate this responsibility to the Head Nurse he submitted that it was inappropriate to allow management to simply indicate that the matter had been delegated and thus that it had no obligation to determine what the practice was. Having delegated i -13- the responsibility to the Head Nurses, it was submitted that management must be held responsible for what those individuals did. It was emphasised that if the schedule had been reviewed in accordance with the obligations of the Nursing Co-Ordinator as set out in the job specifications, the practice would have become apparent to management. Mr. Lukas'iewics also emphasised the fact that no written policy with respect to breaks has been produced. He submitted that if the Centre wishes to assert its policy as a practice, it is obligated to establish that the practice was known or ought to have been known to employees. It was submitted that management has failed to do this in this case. Mr. Lukasiewicz acknowledged that a course conduct cannot constitute a practice within the meaning of Article 12.1 if it is done in secret or with an intention to hide a course of conduct from another party. He erqhasized that the evidence of Mr. Dunn, Ms. Culling, as well as Ms. Donnelly was that they engaged in the practice openly. No one had advised them of the Centre's official policy with respect to rest breaks. With respect to Ms. Almond's evidence about her discussions with.the staff, and in particular Mr. Dunn, it was noted that there was no evidence of any intention or desire on the part of the grievor to keep the practice hidden. It was emphasized that Ms. Almond indicated in her evidence that it was her decision not to raise the -14- matter with Ms. Cushnie and it was submitted that the grievor should not be penalized merely because Ms. Almond, to whom the responsibility of dealing with rest breaks was delegated, chose not to enforce management's policy. Mr. Lukasiewcz submitted that it is the Centre's right and obligation to manage and not the Union's role to ensure that the Hospital is managing the way that it intends to. On behalf of the Centre, Ms. Furanna emphasized that Article 12.1 protects rest periods, not lunch periods and referred to the decisions of the Grievance Settlement Board which distinguish between rest breaks and lunch breaks. It was her submission that the evidence establishes that the employees have taken an hour lunch break, not a half hour lunch and half hour rest period combined. She characterjzed the description of the lunch break as a combination of break and lunch period as a fiction, the purpose of which was to bring part of the'period within the ambit of Article 12.1.. It was her submission that the evidence did not establish that there was ever an afternoon break, but only a one hour lunch break which was a matter that was not encompassed by the provisions of Article 12.1. i -15- With respect to the "present practice" referred to Article 12.1, Ms. Furanna noted that this clause was contained in Collective Agreement for the first time in 1976. As 23 (2) of the Crown Employees Collective Bargaining Act creates a bridging provision between Collective Agreements it was her submission that there was no time at which a new practice could be established subsequent to 1976. It was submitted that the only evidence with respect to practice in 1976 was that of Ms. Cushnie and Ms. Abrecht and that this evidence established that the practice was a 15 minute paid rest period in the morning and a one-half hour lunch period. Alternatively, it was the Centre's.position that even if it were not accepted that the relevant practice is that which existed in 1976, the only practice that is protected by Article 12.1 is one that the employer is aware of and has consented or acquiesced to. In her submission, the evidence did not establish that the employer ever authorized the extension of rest periods and did not consent or acquiesce to such an extension. It was submitted that the Centre cannot be bound by a practice which is established by members of the bargaining unit that is not known to management. -16- It was also submitted that it was unlikely that bargaining unit members, including Mr. Dunn, were unaware of the Centre's expectations with respect to taking a rest break, particularly in light of Ms. Almond's evidence. Ms. Furanna noted that the evidence established clearly that Ms. Cushnie was surprised in June 1987 when she became aware of the practice. It was argued that if Ms. Cushnie were aware of the practice she would not have pursued the matter or asked Ms. Culling for an explanation of what was meant. With respect to the fact that Ms. Cushnie's job specifications referred to matters that include "hands on" management, it was submitted that her actual responsibilities should be examined and noted that the uncontradicted evidence established that she did not have the day to day responsibilities of checking assignment sheets and attending on the floor. It was submitted that Ms. Cushnie was entitled to assume that the Head Nurses were carrying out their responsibilities with respect to scheduling rest breaks. Both counsel made submissions with respect to remedy. It was Ms. Furanna's position that the effect of the memorandum issued subsequent to the grievance being filed was to provide the grievor with the remedy claimed, that is, a fully paid rest break of 30 minutes. Mr. Lukasiewicz submitted that the appropriate -17- remedial relief was the reinstitution of a one hour rest break (in addition to the half-hour lunch), and that the grievor should be compensated at overtime rated for the time worked that he would'otherwise have been on a paid rest break. After a cons ideration of the evidence and the submissions of counsel, we have no hesitation in concluding that the Centre's management, in particular, Ms. Cushnie, was unaware of the practice of the nursing staff on 4-3 with respect to their rest breaks. The members of management were unshaken in their evidence on this point and the actions of Ms. Cushnie after her conversation with.Ms. Culling are inconsistent with any conclusion other than that she was unaware of this departure from the Centre's policy. We agree with the position of the Union that the existence of a "practice" under Article 12.1 does not depend on the specific sanction of management. As Mr. Lukasiewicz acknowledged however, if a course of conduct is to constitute a practice under Article 12.1, it cannot take place in secret or.with an intention to hide it from management. As,well, it is our view that in order for a course of action to constitute a "practice" under this provision it must take place over a period of time. Even accepting the Union's position that the time at wh i ch the practice must be determined is March 16, 1987, -187 it is our conclusion that the necessary elements for the establishment of a "practice" under Article 12.1 do not exist. While the evidence of Mr. Dunn establishes that the nursing staff were taking extended breaks in April 1983, this situation existed for only a matter of months prior to Ms. Almond assuming the Head Nurse duties in January 1984. When Ms. Almond assumed those duties she was clear in her understanding that the Centre's policy stipulated one 15 minute rest break and a half-hour lunch break. Ms. Almond testified in a forthright and credible manner and made admissions that were apparently not in her personal interest to make. The Board has no hesitation in accepting her evidence in its entirety. Ms. Almond.allowed the practice on Unit 4-3 to continue but was clear and unchallenged in her evidence that she advised her staff members that their actions were in contravention of the Centre's policy. She took action to ensure that the practice on Unit 4-3 did not become known to members of management. While in different circumstances the argument of Mr. Lukasiewicz that management must bear responsibility for the manner in which delegated functions of management are exercised might have been persuasive, this argument cannot prevail in these circumstances, where conscious effort was taken to ensure that management did not become aware of this practice. Ms. Culling was clearly not aware of the :; -19- Centre's policy with respect to rest breaks, and as such it is apparent that the practice with respect to breaks on 4-3 was carried out openly from the time that she assumed her duties, in February 1987. In view of the past successful attempt to keep management unaware of the practice the few weeks in which the practice was carried out in a truly open manner is not a sufficient period of time to establish a practice within the meaning of Article 12.1. It is significant, in our view, that within a few weeks of the practice being carried out without the Head Nurse making any efforts to conceal it, management became aware of the practice. While, as Mr. Lukasiewicz pointed out, the grievor carried out his practice with respect to taking rest breaks openly, and while the grievor may have forgotten about or misunderstood the information that Ms. Almond conveyed to him with respect to the circumstances of the extended breaks a practice on the unit with respect to rest breaks cannot be an individualized matter. In these circumstances, when the Head Nurse, a bargaining.unit member who was delegated the responsibility of ensuring that the employer's policy with respect to the taking of rest breaks is complied with and she chooses not to require compliance with the policy, communicates this decision to her staff and takes positive steps to ensure that a practice in contravention of this policy does not become c -20- known to management, such a practice does not constitute a practice within the meaning of Article 12.1 of the Collective Agreement. For these reasons, it is our conclusion that this grievance must be dismissed. Dated at Toronto, this 24th day of January, 1990 5!3AL&d Susan L. Stewart - Vice-chairperson "1 dissent" (Dissent attsched) F. Gallop, Hember -2i- DISSENT GRIEVANCE OF GEORGE DUNN - GRIEVOR O.P.S.E.U. - .UNION MINISTRY OF HEALTH - EMPLOYER ****X*********~****~****X*********r**fi*~~*~*~*~**~ With respect, I must dissent with the decision reached by the majority. The practise regarding rest periods had been in existence for some considerable time -- that practise was one half (k) hour rest period in the early.part of the shift and one half (k) hour lunch break and one half (4) hour break in the second part of the shift which was taken with the unpaid half hour lunch period. Whilst a great deal was made of the fact that management was not aware of the practise, the employees openly engaged in the practise and certainly there was no conspiracy by the employees to do anything other than what had been a long standing practise. The position of Nursing Co-ordinator is a position of manage- ment which is excluded from the bargaining unit. Under the job description for this position which was intro- duced as Exhibit #6, Item 8 states that as part of the terms of reference for the position of Nursing Co-ordinator, 60% of the time is spent making rounds of wards daily with the nurse in charge of the ward. Under item 8, it also claims that part of the job entails supervising directly or indirectly the activities of nurses and assigning staff. -22- PERFORMS AREA DUTIES SUCH AS IS LISTED 35% of time spent. Reviewing work assignments with Head Nurse and suggesting changes on ward, work schedules daily, weekly, monthly. Maintain attendance records of nursing personnel for use of the Assistant Director of Nursing Services (also a position excluded from the bargaining unit). Reviewing and revising time off for all personnel, ensuring adequate staff at all times. It is interesting that no document was produced by management stating a written policy on the taking of breaks. Article 12 of the Collective Agreement states clearly:. "12.1 - The present practise for rest periods in each shift shall be maintained." In this instance the word periods is pluralized. The article also speaks of each shift. This has been the wording in the collective agreement for many years and there has been no attempt to amend it during negotiations. WEBSTERS Dictionary - 1989 Edition defines: Practise: vb -- do hibitually put into action work at. exercise oneself in n -- habitual doing action as distinguished from theory habit exercise in an art or profession -23- WEBSTERS Dictionary 1989 Edition defines: Policy: n -- political wisdom course of action adopted The words practise and policy are not interchangeable as suggested by the decision reached by the majority. For all of these reasons, the grievance should succeed. HELEN O'REGAN. MEMBER