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HomeMy WebLinkAbout1991-0111.Union.92-02-04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE i.'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SuiTE ~100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TE~.~PHONE: (416) 326-;388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). 'MSG ~Z8 FACSIMILE/TELECOPIE : f416) 326- ~396 Unde~ THB CROWN BIfl~LOYBB8 COLLEC'TT?B BARGAZI~ZNG ACT Before THB GR.TL*V'A~CB BBTTLEKL*H~ BOARD CUPE (Union Grievance) Grievor - The Crown in Right of Ontario (Workers' Compensation Board) Enploye~ BEFORE: B. Kirk-wood Vice-Chairperson I. Thomson Member D. Clark Member ~OR TNB B. Toop ~EVOR National. Representative Canadian Union of Public Employees FOR T~B C. Peterson RMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING July 16, 1991 Page 2 DECISION The Union instituted a policy grievance on September 8, 1989 on behalf of the Safety and Security Officers at the Downsview Rehabilitation Centre for compensation for all unpaid lunch breaks worked by the security officers from 20 days prior to the filing of this grievance to December 1, 1989, at overtime rates and as affected by vacation pay. At the hearing the Union made a further claim for overtime pay for any breaks taken after December 1, 1989. Security officers were scheduled to work on continuous shifts. During weekdays, 'the shifts ran on an eight hour continuous rotation. On weekends and on statutory holidays, the shifts were 12 hours :in duration and ran contiguously. Security officers were paid 7.25 hours per · eight hour shift, which included two paid 15 minute breaks:, but were not.paid for a.75 hour lunch break. In December 1987, when management learned that some officers were leaving the premises during the lunch breaks, management posted a memorandum to the security officers asking the officers not to leave the work site, as it was the security officers' responsibility to attend to an emergency, if it should arise during the officers' lunch or coffee breaks. The memorandum also advised the security officers that they would be paid overtime rates if the officer was called off his break to attend to an emergency. Since the memorandum, security officers have been allowed to leave the premises during lunch, but have had to ask permission. Neither the Union's witness nor the Employer's witness could recall any occasion when an officer Page 3 was called off a break to attend to an emergency since the posting of the memorandum. Mr. Stevens, the Union's witness testified that during the lunch period, the officers did not have any responsibility to carry out their duties. They had no restrictions provided that they remained on the Centre's premises. He, however, carried his keys and maintained communications with the desk at all times. In June 1989, Mr. Stevens, asked the Employer to replace the paid 7.25 hours per day with a paid eight hour day from his date of hire. In his view the employer required him to be available for eight hours, which included the obligation to remain on site during lunch breaks, to maintain communications with Security Control 'at all times, and to provide relief for other security officers which reduced the time available for lunch. The Employer denied his request and the Union initiated this policy grievance. On November 23, 1989, the Employer advised the security officers that it was changing its policy. The policy announced was not implemented. The policy was revised immediately thereafter and made effective, December 1, 1989. From December 1, 1989, lunch breaks on weekdays remained unpaid, but the officers could take their lunch breaks offsite. The officers only had to advise the desk officer when leaving and returning to the Centre, so that the desk officer could handle an emergency if one arose. If, however, an officer remained at the Centre, the officer had to respond to all emergencies, and would be compensated by time off or time in lieu. No rate of payment was stipulated. On weekends and on statutory holidays, as there were only two officers on duty, the officers were paid for their lunch breaks as they had to take their breaks on the premises and to attend to any emergency. ' Page 4 - Security officers were temporary employees. The agreement between the Employer and Local 1750 and its permanent employees contained the agreement: between the Employer and the Union for the part-time and temporary employees in Article 22. By specific reference within Article 22, the agreement also provided the grievors the right to grieve, and the right to shift premiums, which was found in the collective agreement between the employer and the permanent employees. The relevant portions of Article 2'2 state: ARTICLE 22 PART-TIME AND TEMPORARY EMPLOYEES Part-time and temporary employees who are ordinarily required to work more than thirteen (13) hours per week, and employees who work on a regular and continuing basis are entitled to the following: (c) Vacation pay shall be based upon four (4) percent of total earnings in the twelve (12) months of employment for which the vacation is given, or part thereof for which no vacation pay has previously been given. (d) Overtime will be paid for authorized work performed in excess of thirteen (13) hours per week or in excess of the employee's regularly scheduled work week if this is greater than thirteen (13) hours. (j) This Article constitutes the entire Agreement between the partie~s on thi.s subject, except for the employee's right to grieve under Article 2 Grievance Procedure. On October 24 1990, the parties ratified the collective agreement that affected the rights of the employer and the employees from October 1, 1988 to September 30, 1990. Page $ There was no change to the wording in the relevant provisions. As Article 22, together with the the right to grieve and the right to shift premiums, constitutes the entire agreement for the temporary and part-time employees as stated in Article 22(j), the claim for overtime pay must rest on the interpretation of "authorized work performed" referred to in Article 22(d). Union's counsel submitted that as the officers were only paid 7.25 h6urs of their eight hour shifts, and yet were required to be onsite and had continuing responsibilities for the whole shift, they were under the control of the Employer during the lunch break. Union's counsel argued that where an employee remains under the control of the employer during a break, it has been interpreted by arbitration boards in the private sector as being "time worked". By application of this principle to Article 22(d) of the collective agreement, Union's counsel submitted that the security officers performed authorized work and were entitled to overtime pay for their lunch breaks. The Employer's counsel argued that the security officers bad no responsibilities during the lunch break and did not carry out any of their duties during the lunch break. The Employer's counsel argued that there was no "authorized work performed" during the lunch perigds, as required by Article 22(d) of the collective agreement. Furthermore, the Employer's counsel argued that the nature of .the officers' work during the lunch breaks was appropriately described by "standby time" in its collective agreement covering permanent employees, which the parties did not include in the agreement for the temporary and part-time employees. Pa~ ~ We must consider what responsibilities and duties that the security officers had during lunch breaks, and whether those duties and responsibilities constituted "authorized work performed"J On the facts in this case the: officers did not have to perform any of their regular duties during the lunch break. However, they were required to remain on the property in the event that they were called back to work to attend to an emergency. Therefore the issue is whether the mere requirement to stay on the property and keep oneself available in case of emergency is "authorized work performed" as stated in Article 22(d) of the collective agreement. In the private sector, boards of arbitration have acknowledged that the requirement to stay within the work premises during a break is "time worked", on the basis that the employees remained under the control of the employer. Joseph of ~b" D~o~e~, of ?.ondon. and R~rv~ R~.~ee~' Un{o~ l.oc~l 710. 11 L.A.C. (3d), 151 (Saltman) (upheld on judicial review), the office and clerical staff~had to remain at the hospital during their meal breaks, in the event that the employer had to ask for their assistance to evacuate the hospital, if necessary. By being confined to the premises, the employees were not free to utilize the time as they wished. The employees could not leave at will, as they had to first ask permission. Therefore, there was no right to leave the premises. Arbitrator Saltman found that even though the employees were not performing services during breaks, the employees were under the care and control of the employer during which the employees' responsibilities Page 7 continued. The lunch time was therefore found to be "time worked" . In Re: Town of Midland and Ont~r{o ?ub~ic ~ervfce ~m~loyees' Un, on. ~cal 328, 31 L.A.C. (3d), 251 (Saltman) snow plough operators on the night shift were effectively confined to their vehicles during breaks due to the constraints placed on them by the employer. Therefore although the snow plough operators did not have to perform any snow plough removal duties during their breaks, the effect of the snow plough operators remaining under the employer's control during the breaks, was found to be "time worked", which then entitled the operators to overtime pay. In the public sector, .panels of the Grievance Settlement Board have also distinguished the obligation to continue to be responsible to the employer from the obligation to perform duties of the job outside the scheduled .hours of work. In the OP~U (Add~nn -t ~l.) and Th, Crown iD Right of th- P~v~nc~ of Ontario {M~n~tr~ of Servia,s) G.S.B. 1314/85, 1315/85 etc.(M.R.Wright) decision, the Board considered claims by a number of correctional officers to overtime pay for meal breaks. Vice-chair Wright, reviewed decisions of the Grievance Settlement Board to assess the underlying philosophy of the Board towards time spent by employees outside their scheduled hours of work. In several Grievance Settlement Board decisions, (Anwyll G.S.B. 406/83 (Samuels); Marcott-, G.S.B. 54/78, (Samuels); Clements G.S.B. 370/84 (Samuels), the issue was whether driving or being a passenger in a Ministry vehicle after work was considered being at work. The Boards were of the view that while the employees were in the vehicles they were essentially not free of their responsibilities and therefore they were at work. In those cases, being at work attracted overtime pay. The Board also reviewed G.S.B. 724/83 (Samuels). The Board considered the position Page 8 of traffic patrollers during their meal breaks and found that the traffic patrollers were not responsibility-free during the breaks. They had to keep the dispatcher informed ,Df their whereabouts and they considered themselves on call throughout their shifts. In that regard., the traffic patrollers were in a similar position to the security officers. Although the traffic patrollers had been called upon during their breaks to attend to emergencies, and the security officers had not, we do not think that it is a material difference as the principle applied was whether there was a continuing responsibility to the employer during the breaks. Although the Board in Add,son found that the number of times that the correctional officers were called back to duty was so infrequent as to be de minimis, we find, the lack of calls to 'attend emergencies during breaks is not relevant, as the Employer made it abundantly clear to the officers in the memorandum that the security officers had a continuing responsibility to the Centre to be available and to respond at any time during the shift. The Add~ ~on decision ultimately found that correctional officers were not entitled to overtime rates for their lunch breaks. The facts of the.Addison decision we:ce not helpful to this Board. The Board found that the evidence was vague and the evidence of the Union's witnesses and those of the employer's witnesses conflicted. The Board found on the evidence before it that the Union was not able to establish that the Correctional Officers involved had continuing responsibilities during breaks. Therefore in both private sector and public sector decisions, boards have not required the duties of the Job to be carried out during breaks or outside scheduled hours of work to constitute work, if the employee continues to have Page 9 responsibilities. As stated by Vice-chair Verity in OPSEU {M{tteregger) and The Crown in R{ght of Ontario (M~n{stry of Correctional Kerv4ces GSB% 481/82(Verity) "the test as to whether an employee is working or is deemed to be working during the course of a meal break is whether or not responsibilities continue during that period. The issue of continued responsibility during a meal break is a factual consideration which must be based on the evidence presented." On the facts in this case the Employer emphasized the continuing nature of the officers' responsibilities in the memorandum to the officers on December 9, 1987. The Employer asked the officers not to leave the premises as the officers were an "essential service" and it was their responsibility to attend to any emergency during any break. Although the memorandum was not framed in a directive manner, the memorandum conveyed the responsibility of the institution to provide "protection to the lives and property" on the institution at all times. Therefore although the security officers did not have to attend to their job duties during their breaks, they had a continuing responsibility to be available at all times and to be responsive. The responsibilities of the security officers to the Centre changed on December 1, 1989. Prior to December 1, 1989, the security officers had to ask permission if the officer wanted to leave the premises. Although permission had always been granted, there was no right to leave. The Employer reconsidered the needs of the Centre and determined that as it was a rehabilitation centre that was not open to the public, there was a relatively low chance of an emergency. Management concluded that it was no longer imperative that the officers remain on the site at all times during the break when there was coverage. As a result, as of December 1, 1989, during weekdays, ~'rom December 1, 1989, the Page 10 officers had the right to leave, and only had to advise the Security Control Desk on leaving and returning to tlze premises. After the change in policy in December 1989, the employees were free of responsibility during their meal break. Those employees who had to. remain onsite for their breaks, during weekends and holidays were compensated. The significance of the requirement to ask for permission to leave is relevant to the interpretation of "authorized". The presence of the officer prior to December 1, 1989, during breaks was not only authorized it was required. Therefore on the evidence before us we find that the security officers had a continuing responsibility during their lunch breaks, and as such remained 'under the care and control of management until the change in policy in December 1989. The time that the security officers spent on the premises during their lunch breaks .was "authorized work performed", as required by Article 22(d) of the collective agreement for overtime pay. Once the officers had the right to leave the premises, they were no longer under the care and control of the employer and they were not at work, and cou'Ld not be entitled to overtime pay. The Employer's counsel argued that the nature of officers' responsibilities were more appropriately described by "stand-by time" in the agreement with the permanent employees, which the parties had not included for temporary or permanent employees. Standby time was provided for in the agreement covering the permanent employees, but not in the agreement covering the security officers. The parties defined "stan~)y time" as "a period of time that is not a regular working period during which an employee keeps himself available for Page 11 immediate recall to work." The inclusion of standby time would modify the application of overtime for permanent employees, as it creates another type of work which attracted a different level of pay. As we are restricted to the agreement has set out in Article 22, we cannot use standby time to modify overtime for the security officers. Therefore the nature of the work that is performed must fall into either one of two categories, the normal scheduled hours of work for which the hourly rate is paid or it must fall into the category of "authorized work performed" outside the normal hours of work. As the lunch break was beyond the normal hours of work, and the security officers remained under the control of the Employer, we found .that the responsibilities during the lunch breaks to December 1, 1989 constituted "authorized work performed". The Employer's counsel argued that the Union was estopped from succeeding on the grievance as the issue had not been raised in the negotiations of the collective agreement. We find however, that the principle of estoppel is not applicable in this case. This case is unlike Re Taqgart ~rv~ ?.rd, and Un~t~ Food ~nd CQ~m~ra4~l Workers' Un4QD, I.O~l 7818 6 L.A.C. (4th) 279 (M.G. Picher) in which the union's acquiesence to the employer's interpretation of an article in the collective agreement prior to the negotiations and its continued silence at the bargaining table estopped the union from succeeding on its claim under the collective agreement existing at the time of the grievance. In the Taggar% case, there had been no grievance filed-by the union to give notice to the employer that it disagreed with the employer's interpretation of the collective agreement. In the case before us the grievance was filed in September 1989, and the employer was aware that there was an issue over the interpretation of the overtime provisions as it applied to the grievors' lunch breaks during the negotiation period. Both parties, by not negotiating the Page 12 issue, while being aware that the issue existed, by the grievance filed, left themselves open to the decision of this board to the interpretation of the collective agreement. In summary, on the fact before us the security officers had a continuing responsibility to the Centre during lunch breaks for which overtime was payable to December 1, 1989. Although Mr. Stevens raised the issue of the meal breaks as an individual matter in June 1989, we have no evidence that the Union raised this issue until this policy grievance was filed. Therefore compensation shall commence from 20 days prior to the filing of the grievance and shall run to November 30, 1989 inclusive. We will remain seized in the event that there is any difficulty with ti~e implementation of this decision. Dated at Toronto, this 4th day of February, 1992. B.A. Kirkwood, Vice-Chairperson I. Th~m_96n, Union Member "! Dissent" (dLssent. at~ached) D. Clark, Employer :Member DISSENT #111/91 The Canadian Union of Public Employees Local 1750 and The Workers' Compensation Board of Ontario Union Grievance I have read the majority decision and find I must, with all due respect, dissent. In my opinion, the Security Officers did not remain under the care and control of management during the lunch breaks and consequently they should not be entitled to receive overtime pay in accordance with Article 22Id) of the collective agreement. Mr. Stevens testified that during the lunch period the Security Officers did not have any responsibility to carry out their duties. During cross-examination he agreed that he could do as he pleased during the lunch period and he was only required to~ inform the "desk" of when he was going to lunch and returning from lunch. He w~s not even required to inform anyone of where, on the 65 acre site, he would be during the lunch break. In other words, during the lunch break the Security Officers were "responsibility free". Even though the only restriction placed on these Officers during the lunch period was that they remain on site, if they wished to leave the premises, all they had to do was ask. Such permission had always been granted in the past. With respect to the memorandum of December 9, 1987, it did specify that Security Officers were an "essential service" and it was their responsibility to attend to any emergency 'during any break. The memorandum also went on to say that if they did have to attend to an emergency while on their breaks, they would have the option of being paid time and one-half or taking the appropriate time off later in their shift. - 2 - If the Security Officers were "responsibility free" during their lunch breaks and if, for example, the' employer did not require them to attend to any emergency on any specific day but only remain on the premises, what then does this~ time constitute? Under normal circumstances it would constitute "stand-by time" as contemplated by Article 9.03 of the collective agreement. 9.03 Stand-by Time (a) "Stand-by time" means a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work. (b) Stand-by time shall be approved in writing and such approval shall be given, prior to the time the employee is required to stand-by. It would be stand-by time because the two cor~itions would have been met. The Security Officers were. required to be available during lunch to attend to any emergencies and the apprbvi~l for stand-by time was in writing, i.e., the December 9, 1987 memorandum. However, these are not normal circumstances for Article 9.03 does not apply to part-time and temporary employees (Security Officers). Because of this, does the Fesponsibility and duty of a Security Officer during the ~unch break constitute "authorized work performed"? In my respectful opinion, ii; does not. Looking briefly at some of the cases cited, in Re: Rel:[~ious HosDitallers of Hotel-Dieu of St. Joseph of the Diocese of London and Service Employees' Union, Local 210, 11 L.A.C. (3d), 151 (Saltman), the office and olerical..staff were required to be available to evacuate patients in the event of a disaster. Arbitrator Saltman found that the employer's case was "so~aewhat tenuous in view of the category of employees involved". Obviously, the duties that they were keeping themselves available for were totally different from the duties they normally performed during the remainder of their shift. - 3 - Arbitrator Saltman found that the employees' responsibility to the employer continued during the lunch period and the lunch period was considered "time worked" for the purposes of the overtime provisions of the collective agreement. In the instant case, the Security Officers were "responsibility free" during their lunch period. With respect to Town of Midland and Ontario Public Service Employees Union, Local 328, 31 L.A.C. (3d), 251($altman), the overtime language in the collective agreement did not refer to "authorized work performed". It only defined overtime as "all time worked in excess of a normal eight (8) hour working period" (Article 22.01). In the instant case, to receive overtime pay the work performed must be "authorized". I would submit that Vice-chair Verity's decision in OPSEU (Mittereg~er) and The Crown in Rieht of Ontario {Ministry of Correctional Services, GSB #481/82, is directly on point. In that case the evidence was that the Correctional Officers ate their meals in the cafeteria or the squad room. During the meal break they were allowed to eat meals without interruption, free of responsibility and without supervision. During an emergency, the Officers were expected to report for duty upon request even though they were on a meal break. The overtime language in thmt case referred to an "authorized period of work" and the Ministry argued that the Correctional Officers were not in fact working during their meal breaks. Vice-chair Verity did state 'that "the test as to whether an employee is working or is deemed to be working during the course of a meal break is whether or not responsibilities continue during that period. The issue of continued responsibility during a meal break is a factual consideration which must be based on the evidence presented". He then went on to state that "Also an irrelevant consideration is whether or not a Correctional Officer is permitted to leave the Institution during a meal break". The Board stated that "a Correctional Officer at Millbrook has no responsibilities during his meal period. On the rare occasion when there is an emergency during a meal break, a Correctional Officer is expected to return to work upon request and is subsequently paid accordingly or alternatively given time in lieu thereof". The Board then concluded that the grievor was not under the control of management nor on duty during the meal break. The grievance was dismissed. 4/... - 4 - In the instant ease, the Security Officers had[ no responsibility during the lunch break. They were not even 'required to inform anyone of where on the premises they would be during this break. They could do whatever they wished. If they ~ranted to leave the premises they had only to ask permission. If they were required to attend to an emergency during the break they were paid. time and one-half or given the appropriate time off. The "stand-bY" language of this collective agreement does not apply to them. In conclusion, I am not convinced that the mere requirement 'to stay on the property and be available in case of an emergency is "authorized work performed". Accordingly, I would have dismissed the grievance.