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HomeMy WebLinkAbout1987-2225.Money.88-11-29Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ?IPSEU (Donald C. Money) and The Crown in Right of Ontario (Ministry of Correctional Services) J. Gandz Vice-Chairperson J. McManus Member M. Wood Member For the Grievor: R. Blair Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors For the EmpIoyer: A.R. Rae Senior Staff Relations Officer Staff Relations Section Management Board of Cabinet Hearing: May 31, 1988 Grievor Employer The facts of this case are not in dispute. The grievor, Donald Money who is a correctional officer at the Millbrook Correctional Centre, attended a grievance meeting at his place of work on October 23, 1987. Tke matter being discussed was another grievance filed by Mr. Money. The attendance at this meeting involved him staying at his place of work for one hour beyond the normal end of his shift. He was not ordered to stay at this meeting . indeed the question as to whether he was obliged to stay or not was not raised either by himself or the employer at the meeting. In his grievance, Mr. Money is asking to be paid overtime for his attendance at this meeting. His argument is that although he was not attending to his normal duties he was in fact ‘on-call’ in case of an emergency and would then have had to respond as if he was at work. In the alternative, Mr. Money is claiming that he should be paid at least one-half hour of overtime since his colleagues received that amount of overtime pay that day since it was necessary to call back that shift as the result of a shortage in the inmate count. The Employer established: through cross examination of Mr. Money, that he did not state at the meeting that he was on overtime at 3.00 p.m. and also that it was not uncommon for employees to go into grievance meetings on their own time. The Union cites Article 27.6.2 of the Collective Agreement: 27.6.2 An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings. The Union also refers to Articles 13.1 and 13.2 of the Collective Agreement: 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 l/2) times the em$oyee’s basic rate. 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 The Union is trying to stretch the definition of “overtime” to include time spent in grievance meetings beyond the person’s normal shift. In support of its argument, the Union relies on several cases, notably Re GWed Steelworkers of America and Auromafic Screw Machine Co,, Automotive Hardware Ltd. (1970) 21 L.A.C. 255 (Shime), Re United DEClSlON Steelworken’ Local 7105 and Automatic Screw Machine Products Ltd. (1972) 23 L.A.C. 396 (Johnston) and Re Hamilton Street Railway Co. and Amalgamated Transit Union, Local 107 (1981) 1 L.A.C. 355 (Shime). All of these cases involve the payment of overtime pay to individuals who were not performing their normal work but who were substantially under the control and/or direction of management. In the HamiNon Street Railway case, employees were directed to travel to another location to repair windows on buses which had been damaged by vandals. The Board found that the grievors were entitled to claim overtime for the hours that they slept and ate as well as those which they worked since “we determine that they were on duty at all material times and subject to the direction of management and thus not free to engage in personal activities of their choice” (at page 358). In Automatic Screw Machine (1972) a group of employees claimed overtime pay for their lunch period. 7’he Board set out a test for whether or not a person is working is whether or not his responsibilities continue during the peiod and the Board found in that case that the employees did have such responsibilities. I No-one covered their machines while they were away at lunch -- they were ‘covered’ by other operators who watched to see if anything went wrong but, if it did, they were responsible for returning to their machines and firing them. This was essentially the same issue that had been decided in the Automatic Screw Machine case in 1970. The Union also relies on Re Allied Chemical Canada Lfd and United Automobile Workers, Local 89 (1975) 8 L.A.C. (2d) 26 (O’Shea) in which an employer required and directed an employee to attend an interview after the normal expiration of his shift. In this case, the sole arbitrator declared that “Where an employer makes a claim upon an employee’s time, the employee is entitled to be paid for such time. However, this general rule must be applied reasonably and with common sense.” The arbitrator then discusses this statement further but it is clear from his discussion that the case requires a specific request or instruction from management before the employee can claim that he or she is being detained beyond normal working time. We do not accept that these cases provide much assistance to the grievor in the instant case. First, there is no claim that the employer ordered or instructed the grievor to remain at work beyond the normal working hours. He was free to go at the end of his shift if he so desired although it would have been inconvenient for the employer had he chosen to do so Second, while the grievor was “on call” it was only in the most general sense that any member of the correctional services community was “on call” in the event of a major emergency and, in this respect, the situation is not at all analogous to those cited by the Union. The grievor had been replaced by someone when his normal shift had ended and there was no evidence that there was not a full complement of correctional officers at work while the grievor was involved in that portion of his grievance meeting which went over the end of his shift. Third, grievance meetings are held to resolve disputes that arise between individuals and/or their union and the employer . . . they should be beneficial to both. TO suggest that the employer must pay overtime for people who voluntarily attend such meetings -- as well as allowing them to attend such meetings without loss of wages or benefits -- is not in the interest of the grievance process itself. On the other hand, because he was involved in the grievance meeting it appeared as if the grievor did lose out on the overtime which was paid to the remainder of his shift on that particular day. It would appear, therefore, that he did in fact “lose pay” because of the grievance meeting and he should be compensated for this. Accordingly, we order that the grievor be paid one-half hour of pay at time and one-half. We will remain seized of this matter in the event that there is any problem in interpreting or applying this award. Dated at London, Ontario this igt:i day of November , 1988 M. Wood, Member -4-