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Home My WebLink About1990-1752.Keeling&Poling.91-03-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEYANCE C,OMMISSlON DE . SETTLEMENT REGLEMENT ' BOARD DES GRIEFS 180 OUNOAS STREET WEST, SU.~TE 2'(00, TORONTO, ONTARIO. M5G JZ8 TELEPHONE /T~'L£PHONE: (4 ~6; .126- ~ :~85 180, RUE DUNDAS OUEST, BuREAu 2100, TORONTO fONTAR~O). MSG ~Z8 FAC$1MI&E/TEL~COPlE : (416~ 1.25-r396 1752/90, 1753/90 IN THE MATTER OF AN ARBITRATION Un,let THE CROWN EMPLOYEES' COLLECTIVE BARG~%INING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Keeling/Poling) '- Grievor - and - The Crown in Right of Ontario (Ministry of Health) · Employer BEFORE: R. Verity Vice-Chairperson J. Carruthers Member D. Clark Member FOR TH~ C. Das~ios GRiEVOR Counsel Gowling,.Strathy & Henderson Barristers & Solicitors FOR THE D. MacLeod EMPLOYER Counsel .. Legal Services Branch Management Board ~of Cabinet February 14, 1991 DECZSZON Rosemary Poling and Sharon Keeling are console attendants, also known es Console Operators, who work at Lakehead Psychiatric Hospital. tn identical grievances dated Harch 21, 1990, they allege'a violation of Article 12,.1 of the collective agreement by the Employer's failure to provide mlrest bresks". Article 12 entitled "Rest Periods" reads: 12.1 The present practice 'for rest periods in each shift shall be maintained. The facts are not in dispute. At Lakehead. Psychiatric Hospital console attendants operate the telephone switchboard system and-monitor the fire alarm panel on a 24 hour. basis, seven days a week. Zn addition, they perform reception duties and related tasks as described in the relevant position specification form"(Exhibit 5). There are four shifts for console operators: two day *shifts.- 7:30 a.m. to 4:00 p.m. and 8:00 a.m. to 4:30 p.m.; one evening shift - 4:00 p..m. to 12:00 p.m.; and a midnight ~shift from 12:00 a.m. to 8:00 a,m. On each day. 8hilft, there is a 40 minute "lunch break" and two 20 minute* "coffee breaks". However, there are no formal 3 "rest breakS7 on either the evening or midnight shift and similarly no such rest breaks on statutory holidays or on weekend shifts. Apparently this practice has existed at Lakehead Psychiatric Hospital for approximately 25 years. The matter before us does not involve meal periods, although that issue appears to i'be the grievors' primary complaint. Rather,'the grievances relate to the absence.of formalized "rest periods" on the evening, midnight, statutory holiday and weekend 'shifts. During these shifts a console operator works alone without relief for rest'periods. In'essence, these grievances arise because, duringthe shifts in question, the operator is not permitted [o leave the switchboard office. The busy period fOr console operators takes place during regular weekly daytime hours. The~ evidence est'ablished 'that console operators handle 100 telephone calls an hour during the day. In addition', there are numerous telephone calls between 4:00 p.m. and 8:00 P.m. and relatively few thereafter. For 'example, on the midnight shift there are normally between 19 and. 26 telephone calls, some of which, are .in the nature of crisis calls. No'ma1 visiting hours at the Hospital are between 2:00 P.m. and 8:00 p.m. and the doors are locked at 9:00 p.m. 4 The switchboard office contains lockers for the staff, a private washroom, a m~crowave oven, a refrigerator, a TV set and a coffee maker. Apparently the TV ~nd the coffee maker are owned by individual staff members. The TV set cannot be. used during the daytime and is used exclusively for leisure per~ods during evening and m~dn~ght shifts. In addition, the Hospital's "no smoking policy" does not apply to console operators who are required to work the evening and midnight shifts, The grievor, Rosemary Poling, testified aa to the inconvenience of the present practice and the perceived discriminatory treatment. Her evidence.was to the effect that When she worked a- straight eight hours on an "off duty shift" without a break', nursing staff and housekeeping staff working ~he same shift were given mmtw0 res~ periods. The gist of her complaint was the absence of relief assistance to enable console ' operators to take a res: period away from the work area. According to Mrs. Poling, she would like the opportunity to 1'save her work station for rest periods at any of the lounges or the cafeteria or canteen. 'Jeannette Nunshaw te systems co-ordinator at the Lakehead Psych~atrjc Hospital. She testified that it was essential to 5 have the switchboard manned at alrl' times Jn order to receive crisis calls on off duty shifts and to monitor the .fire alarm panel. Niss Nunshaw'$ evidence .was that the fire alarm system was old and occasionally ma]functioned. Further, she testified that the practice at Lakehead Psychiatr,ic Hospital was virtually ideAtics3 to all other Ontario PsYchiatric Hospitals with the exception of the St. Thomas facil'ity. The Union argued that Article 12.1 gives Management a discretion in establishing a practice and. that there is' a continuing duty to ensure that the p~actice is neither unreasonable nor discriminatory. Mr. Dassios contendedr that while the Employer is not bound by the provisions of the Employment Standards Act and in'particular s.22, the Board should · ake into account that standard in determining the reasonableness of the practice. In support, the Union cited the following authorities: R- Cpps,Jmer- RI... Co. ltd. -nd Alumin-m. Rrjck and Rl~sS ~ork~r~ Tnt~Fn~tion~l Union. .l~al ~00-~ (1986), 23 L.A.C. (3d) 338 (Dav~s); and ~P~FU ~J. C~rv~lho) ~nd Hint-~r¥ ~f ~h~ ~t~orn,~y ~n~r-1, 821/88 (Kirkwood). The EmplOyer maintained that since the practice of rest periods had not been altered there was no vtoiation of the collective agreement. Hr. NacLeod argued that Article 12 does not involve the exercise of management's discretion bu~ simply obligates the Employer to maintain the current practice. The Board was refer~ed to the following authorities: Re lat. MichAel's H°snit~l enH )n~ernm~ionA1UDion of Onermtin9 Fnqinmers (.1973), 3 L.A.C. (2d) 443 (Rayner); and OpSFU (Union ~rie¥~nce) and ~ini-trv of Tr~n~nortetion end Conm,,nic~tion-, 724/83 (Samuels). The issue for determfnation, we th~nk, ~e ~hat was 'the "present pract'ice for res~ per~0ds" durin~ the current collective agreement and whether [hat practice"-was maintained by the Employer. The wordin9 of Article 12 ie briefly expreeeed. The ~erm "rest period" ie not defined 1n the colleCtive agreement and there ie no guidance whether or not a rest peri.od is intended to be ~aken a~ Ihs work s~ation. Zn our view, Ar~Jcle 12 goes no further than to require ~he existence of a rea% per~od and to obli'ga~e the EmPloyer [O maintain the practice ~n each eh~ft '%hroughou% the~l~fe of the collective agreement. We adop~ the rationale of Vice-Chairperson Draper in Op~FU (P-~riek m~srn~ ~nH Nin~-~v of ~rr~[~nn~'l ~rvJ~-, 365/82 where he stales at p~. 8 end 9: 7 Article 12 requires that not only are rest periods in existence on the effective date of the collective agreement to be maintained, but the practice with regard to their observance is to be maintained, As a consequence, whatever rights the Employer may have in respect of normal hours of work, and shift schedules, they are circumscribed by the provisions of Article 12 ..... The prevailing 'practice, the circumstances under which rest pe,~iods occur in a particular case, therefore becomes the primary consideration in determinin9 what constitutes a rest period. In OPSFU (Union Griev-Dce) and Ministry O~ Transportation and Comm~Jnications, supra, after reviewing evidence of negotiating history, Vice-Chairperson Samuels concluded at p. 10: Article 12.1 preserves the "present practice for rest 'periods in each shift", but this does not include the practice for "mea] breaks". In the instant matter, it cannot' be said that console. operators required to work off,duty shifts have no rest periods. The evidence is to the contrary, Simply stated, during off duty shifts there are frequent opportunities to take rest periods.,' although admittedly within the confines of the switchboard office. .During these particular shifts, console operators spend a good deal of time in passive activity? The evidence 'established that much of this time is spent watching TV, or reading, or listening to cassettes. To accommodate rest periods during off duty shifts, there are a number of special amenities in the .switchboard office such as washroom facilities, a refrigerator and a microwave oven, and the exemption to the no smoking polidy. ? Zn our view, the reasonableness of the Employer's'practice is not the question to be determined under Article 12 of the collective 'agreement. Had we been required to make that determination, we would not have found that the. Employer's practice Was unreasonable, given the particular circumstances of .this casa and given the' need to handle crisis calle and' to monitor the fire system. In the result, we are satisfied that there has been no violation of Article 12, Accordingly, these grievancee are d i smi ssed. DATED at Branti=ord, Ontario this 25th day o~ ~arch R. L. VERZTY, Q,C. -/VZCE-CHAZRPERS~ / m.j. CARRU~HERS - MEMBER