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HomeMy WebLinkAbout2005-1037.Union et al.08-01-28 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2005-1037, 2005-1038, 2005-1039, 2005-1040, 2005-1041, 2005-1042, 2005-1043, 2005-1044, 2005-1045, 2005-1046, 2005-1047, 2005-1048, 2005-1049, 2005-1050, 2006-1160, 2006-1201 UNION# 2005-0140-0001, 2005-0140-0004, 2005-0140-0005, 2005-0140-0006, 2005-0140-0007, 2005-0140-0008, 2005-0140-0009, 2005-0140-0010, 2005-0140-0011, 2005-0140-0012, 2005-0140-0013, 2005-0140-0014, 2005-0140-0015, 2005-0140-0016, 2006-0139-0001, 2006-0129-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance et al.) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE M. V. Watters Vice-Chair FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Len Hatzis Counsel Ministry of Government and Consumer Services HEARING February 8, June 19, September 29, 2006; April 27, June 27 and October 29, 2007. 2 Decision This proceeding arises from a Union grievance dated April 27, 2005 and from thirteen (13) individual grievances all dated May 9, 2005. The Union grievance states that, ?The Employer is in violation of Article UN-8 of the Collective Agreement, specifically but not exclusively?. By way of the desired settlement, the grievance seeks the following: ?Full redress. Cease and desist order?. The individual grievances each claim that ?the Employer is specifically but not exclusively in violation of article UN-8 of the collective agreement?. As a remedy, they ask for ?full redress and for the Employer to cease and desist this collective agreement violation?. In the period material to this case, the thirteen (13) individual grievors were all classified as Transportation Enforcement Officer 2. All of the grievors then worked out of the Essex South Truck Inspection Station located just to the east of Windsor, Ontario on Highway No. 401.The Position Description Report for the position of Transportation Enforcement Officer 2 describes the purpose of the position in the following terms: ?Within an assigned geographic area, to enforce and ensure compliance with legislation, regulations, and industry standards pertinent to the safe, efficient, and legal operation of all types of vehicles on the highway system?. Transportation Enforcement Officers 2 perform their duties at Inspection Stations and when out on ?patrol?. 3 The individual grievors worked under a Compressed Work Week Agreement (hereinafter referred to as CWWA), as provided for by article 10 of the Central Collective Agreement. The CWWA read, in part: ?Article 1 ? Work Unit and Employees Covered This agreement covers all Enforcement Staff assigned to the Essex South Truck Inspection Station. This work location operates on a twenty-four hour day, seven days per week and 365 days per year. Article 2 ? Hours of Work 2.1 Transportation Enforcement Officer 2?s will during a ten week period work a total of 362.5 hours. These hours will consist of the following as in the attached Schedule Appendix ?A?: 16 day shifts at 12 hours from 0600 hours to 1805 hours 14 night shifts at 12 hours from 1800 hours to 0605 hours 2.2 Article ADM5.2 of the Bargaining Unit Working Conditions and Employee Benefit Agreement will not apply to employees covered by this compressed work week agreement. Article 3 ? Overtime 3.1 Authorized periods of work in excess of the regular working periods specified in Article 2.1 or on a scheduled day(s) off will be compensated for in accordance with Article ADM8, (Overtime) of the Bargaining Unit Working Conditions and Employee Benefits Agreement. ??????????????????????.? A special project, referred to as the Truck Response Unit (TRU) was initiated by the Employer in April 2005. The initiative was a response to an expressed concern that an excessive number of unsafe vehicles were operating on 4 certain roads and highways within the Province. Specific complaints were forwarded to the Minister of Transportation by elected officials in the Town of Lakeshore and the County of Essex. As a consequence, teams of Transportation Enforcement Officers were put together to ?blitz? certain areas deemed to be problematic. Of relevance here is the fact that one (1) such team, initially comprised of six (6) Transportation Enforcement Officers 2 from London, Sarnia, Kitchener and Barrie, were brought in to perform this work. It is my understanding that the team performed patrol type duties designed, in large part, to catch those truck drivers who sought to bypass and avoid the Essex South Truck Inspection Station. There is no real dispute between the parties that the type of work performed by the external team was work that the individual grievors were qualified to perform. Members of the TRU team assigned to the Windsor District routinely worked in excess of seven and one quarter (7 ¼) hours per day. It appears that the hours worked ranged between nine (9) and twelve (12) hours per day. The team members did not claim, and were not paid, any overtime in respect of their work on the project. Each of the team members worked under a CWWA at their home location. I was informed that while the blitz work was being performed by ?the out-of-towners?, the individual grievors performed their regular duties within the confines of their normal hours. 5 The issue in this proceeding, in the context of the circumstances generally outlined above, is whether the Transportation Enforcement Officers 2 assigned to the Essex South Truck Inspection Station were entitled to any overtime in respect of the hours worked by the TRU members in excess of seven and one quarter (7 ¼) hours per day. A significant amount of evidence was presented by the parties relating to the above-stated issue. Evidence for the Union was presented by Mr. Stephen Elliott and Ms. Yvette Campeau. Mr. Elliott is a Transportation Enforcement Officer 2. At all material times, he worked out of the Putnam Truck Inspection Stations in the London District. He was one (1) of the external employees who worked on the TRU in the Windsor area. Ms. Campeau is also a Transportation Enforcement Officer 2. She works out of the Essex South Truck Inspection Station. Ms. Campeau is one (1) of the individual grievors in this case. Evidence for the Employer was presented by Mr. Warren Blackmore, Mr. Earl Alexander and Mr. Dave Crawford.Mr. Blackmore is currently the Director of Operations for the Central Region. At the time relevant to this dispute, he was the Regional Manager of Field Services for the Southwest Region. Mr. Blackmore was the individual who devised the TRU strategy as a response to the expressed concerns. Mr. Alexander is currently the Enforcement Coordinator for the London District. He was a Shift Leader in the London District in the 2005 to 2006 period. Mr. Alexander served, at Mr. Blackmore?s request, as the supervisor of the TRU. 6 Mr. Crawford is currently the Enforcement Coordinator for the Windsor District. Transportation Enforcement Officers at the Essex South Truck Inspection Station report to him. In 2005, Mr. Crawford was the Acting Enforcement Coordinator for the London District. At the time Mr. Elliott started on the TRU, he reported to a Manager who, in turn, reported to Mr. Crawford. There are three (3) Districts in the Southwest Region, namely, the London District, the Waterloo District and the Windsor District. At the commencement of the TRU project, Transportation Enforcement Officers 2 working in the London District could be assigned to either the Putnam Truck Inspection Stations or the London-Middlesex Station. These two (2) work locations were amalgamated in April 2006. Thereafter, all Transportation Enforcement Officers 2 were headquartered at the Putnam Truck Inspection Stations. Transportation Enforcement Officers 2 working in the Waterloo District could be headquartered at any of the following locations: Waterloo, Brantford, Clinton, Barrie or Owen Sound. Their duties, generally, focused on patrols of the roads in the area of their headquarters. I was informed that there are no Truck Inspection Stations in the Waterloo District. Lastly, Transportation Enforcement Officers 2 in the Windsor District could be headquartered at any of the following locations: the Essex South Truck Inspection Station, the Windsor District Headquarters Office, the Sarnia Truck Inspection Station or the Chatham Field Office. There is only a single 7 incumbent in the latter office. That person?s position is described as Transportation Enforcement Officer 2 (Mechanic). As stated above, elected officials from the Town of Lakeshore and the County of Essex expressed concerns to the Minister of Transportation that trucks were evading inspection at the Essex South Truck Inspection Station by exiting Highway No. 401 and travelling on bypass routes. This practice raised a concern in that it suggested that the drivers involved, and/or their vehicles, might be unsafe and that they sought to escape detection for that reason. At the Employer?s request, Mr. Blackmore devised a strategy to respond to the complaints. This strategy, from an operational perspective, had two (2) components. First, the Employer would maintain the existing levels of surveillance and inspection at the Essex South Truck Inspection Station on a twenty-four/seven (24/7) basis. Second, a TRU would be created, by bringing in additional personnel from within the Region, to enhance surveillance activities on the municipal roadways that were being used as bypass routes. Mr. Blackmore noted that for the TRU to property function, the Essex South Truck Inspection Station had to remain open at all times. Simply stated, truck drivers would not be motivated to bypass the Station if it was closed. Mr. Blackmore, for purposes of constructing the TRU, contacted his District Managers and asked them to identify individuals who might be willing to work on the team. He told them that he was looking for individuals who had ?high 8 performance levels in the writing of tickets?. In his words, the TRU was expected to produce ?high numbers?. Initially, six (6) Transportation Enforcement Officers 2 were selected to serve on the TRU. Three (3) of the Officers were from the Waterloo District, one (1) was from the London District, and two (2) were from Sarnia, which as noted earlier is within the Windsor District. None of the individuals selected were from the Essex South Truck Inspection Station. Mr. Blackmore explained that the complement at that location was insufficient to meet both components of the strategy. In his mind, the ultimate success of the TRU project was dependant upon the following: (i) the maintenance of the existing complement at the Essex South Truck Inspection Station in order to ensure it was fully operational at all times; and (ii) the use of the out-of-town Officers to perform concentrated blitz activities on the identified bypass routes. Mr. Blackmore advised that the Essex South Truck Inspection Station is operated through the use of five (5) teams. Each team is comprised of four (4) Transportation Enforcement Officers and a Team Leader. One (1) team is on duty per shift. As noted above, shifts at the Station are twelve (12) hours in duration. During the course of cross-examination, it was suggested to Mr. Blackmore that, at a minimum, there would have been eight (8) Officers off shift who could have performed the work done by the TRU. He disagreed with this suggestion. Mr. Blackmore stressed that the Essex South Truck Inspection Station is a twenty- four/seven (24/7) operation and that employees are entitled to rest or recovery 9 periods between shifts. It was his evidence that Officers, if they had been assigned the TRU responsibilities, could have become fatigued over time to the point of being unable to perform their regular duties. Mr. Blackmore further noted that if one (1), or more, of the eight (8) Officers had been assigned TRU duties, they would then have been entitled to overtime. He advised, in this regard, that he did not have any ?financial allocation? to pay overtime. Mr. Blackmore testified that, generally, there is no planned overtime at the Essex South Truck Inspection Station. He indicated, additionally, that extra Officers are not called in if a team member is unable to work their shift because of illness or bereavement. Lastly, Mr. Blackmore testified it was his understanding from the outset that employees working on the TRU would not be paid overtime for their efforts on the project. The TRU initiative commenced on April 4, 2005. Shortly before the start date, Mr. Blackmore and Mr. Alexander met with the employees who had volunteered to participate in the program. The meeting was held at the Regional District Office in London, Ontario. Mr. Elliott was one (1) of the Officers who attended. At the meeting, Mr. Blackmore provided the following information: i. The nature of the complaints received and the response strategy; ii. The identified patrol zones; iii. Work on the TRU would take place on weekdays between Monday and Friday and during day light hours only; iv. The TRU would work in a team of three (3) and be supervised by Mr. Alexander; and 10 v. Overtime would not be paid. Mr. Blackmore advised that the hours of operation of the TRU were to fall within ?normal business hours?. By way of example, he stated that travel from and back to the home location was to occur within the confines of the normal work day. Mr. Alexander, in his evidence, confirmed that the Transportation Enforcement Officers 2 at the meeting were told that they would work Monday to Friday within day light hours and that there would be no overtime. He testified they were also informed that there would be some flexibility in the hours worked and that the actual hours could vary from week to week. Mr. Alexander advised that two (2) of the six (6) Officers left the TRU project shortly after the meeting. One did so for personal reasons; the other left when he realized there would be no overtime paid. Mr. Alexander testified that at the start of the project, the TRU team was comprised of himself and three (3) Transportation Enforcement Officers 2. He stated that by mid-June 2005, the TRU operated with just two (2) Officers and, on occasion, just one (1). Mr. Alexander observed that only he and Mr. Elliott worked every week on the TRU team. He stated that the other Officers would work a week ?here or there? depending on what their schedules would permit. Mr. Elliott worked on the TRU between April 5, 2005 and May 9, 2006. It is apparent that there was a bit of a break in his involvement over the intervening winter months. Mr. Elliott stated that the work he did on the project was similar to that he performed when working out of the Putnam Truck Inspection Stations. He 11 advised that his primary duty, when working in the Windsor area, was to strictly enforce safety related regulations in respect of commercial motor vehicles found operating on non-trucking routes. Mr. Elliott agreed that this work was largely performed during periods in which the Essex South Truck Inspection Station was open. When working out of the Putnam Truck Inspection Stations, Mr. Elliott was covered by a Compressed Work Week Agreement. The Agreement read, in part: ??????????????????????????.This compressed work week agreement is made in accordance with Article 16 (local and Ministry Negotiations) of the Central Collective Agreement and Article ADM2. (Hours of Work) of the Bargaining Unit Working Conditions and Employee Benefits Agreement, between the Ontario Public Service Employees Union and the Crown in right of Ontario, represented by Management Board of Cabinet. Unless otherwise specified in this Agreement, all articles of the Central and bargaining unit Working Conditions and Employee Benefits Agreements apply to employees covered by this Agreement. Article 1 ? Work Unit and Employees Covered This agreement covers all Enforcement Staff assigned to the Putnam North Truck Inspection Station and the Putnam South Truck Inspection Station. These work locations operate on a twenty-four hour day, seven days per week and 365 days per year. Article 2 ? Hours of Work 2.1 Transportation Enforcement Officer 1?s and Transportation Enforcement Officer 2?s will during a ten week period work a total of 362.5 12 hours. These hours will consist of the following: 16 day shifts at 12 hours from 0700 hours to 1905 hours 14 night shifts at 12 hours from 1900 hours to 0705 hours 2.2 Article ADM5.2 of the Bargaining Unit Working Conditions and Employee Benefit Agreement will not apply to employees covered by this compressed work week agreement. Article 3 ? Overtime 3.1 Authorized periods of work in excess of the regular working periods specified in Article 2.1 or on scheduled day(s) off will be compensated for in accordance with Article ADM8, (Overtime) of the Bargaining Unit Working Conditions and Employee Benefits Agreement. ?????????????????????????? A number of Daily Input Forms and Ministry of Transportation Enforcement Initiative forms were filed in this proceeding as Exhibit #5. Mr. Elliott completed one (1) of these two (2) forms each day he worked on the TRU. Both forms tracked the location worked on a specific day and the number and nature of charges laid. Only the Daily Input Forms, however, recorded the shift and time worked on a given day. Mr. Elliott advised that on days he did not use this form, he would e-mail or tell his Enforcement Clerk, Ms. Denise Deisley, of the hours worked. Whatever form was used, it was Mr. Elliott?s practice to keep a copy for himself and to forward copies to both his supervisor and Ms. Deisley. 13 Exhibit #5 contains Daily Input Forms and Enforcement Initiative Forms for the period April 5, 2005 to May 9, 2006.It is apparent that the Exhibit is incomplete in the sense it does not include documentation for all days worked by Mr. Elliott over the aforementioned period.Mr. Elliott noted that the Enforcement Clerk would have a more complete record of his hours of work while on the TRU project. A review of the Daily Input Forms contained in Exhibit #5 discloses that Mr. Elliott recorded the following with respect to his shift and hours of work: - May 9, 2005, 0730-1700, 9.5 hours - May 10, 2005, 0800-1800, 10 hours - May 11, 2005, 0700-1700, 10 hours - May 30, 2005, 0800-1800, 10 hours - May 31, 2005, 0730-1700, 9.5 hours - June 2, 2005, 0700-1800, 11 hours - June 5, 2005, 0700-1900, 12 hours - June 14, 2005, 0900-1800, 9 hours - June 15, 2005, 0800-1800, 10 hours - June 16, 2005, 0700-1700, 10 hours - July 20, 2005, 0600-1730, 11.5 hours - July 25, 2005, 0630-1830, 12 hours - July 26, 2005, 0730-1800, 10.5 hours - September 28, 2005, 0700-1900, 12 hours - October 26, 2005, 0630-2030, 14 hours - February 16, 2006, 0700-1900, 12 hours - May 8, 2006, 0700-1900, 12 hours - May 9, 2006, 0630-1830, 12 hours Two (2) points need to be mentioned with respect to the above record. First, the th Daily Input Form for June 5 reads 2006, rather than 2005. I am satisfied that it should have been marked 2005, as it is clear that Mr. Elliott did not work in Windsor on the TRU after May 9, 2006. Second, Mr. Elliott worked fourteen (14) 14 hours on October 26, 2005. This resulted from a lengthy attendance in Court in Windsor. It is clear that, based on a twelve (12) hour schedule, Mr. Elliott would have been entitled to two (2) hours of overtime for that day. I am unable to tell from the evidence whether he was paid for the overtime or not. Mr. Elliott advised that his actual work schedule was prepared by Mr. Alexander ?from week to week? and that his hours were determined ?on a weekly basis?. He agreed that while working in Windsor on the TRU, he typically worked more than seven and one quarter (7 ¼) hours per day.It was his evidence that Mr. Alexander would determine the actual hours worked on a given day, subject to ?extenuating circumstances? arising that could serve to either shorten or extend the shift. Mr. Elliott testified that shift length could vary depending on a number of factors including weather, traffic accidents, time spent in Court and whether the Essex South Truck Inspection Station was closed. Mr. Elliott testified that while working on the TRU, he did not work the same schedule that he worked when at Putnam. In his words, he worked the same number of hours, but on different days. Mr. Elliott advised, in this regard, that the Enforcement Clerk would try to ensure that at the end of each ten (10) week cycle, his hours balanced out on average to thirty-six and one quarter (36 ¼) per week so as to accord with the total hour threshold set out in the Putnam CWWA. Lastly, Mr. Elliott acknowledged that when he agreed to work on the TRU, he was told that there would be no overtime. 15 Mr. Alexander testified that the TRU spent between three (3) and four (4) days per week in the Windsor area. He advised that the members of the team would not travel back to their home locations at the end of the workday but, instead, would spend the nights in Windsor at a local hotel. Mr. Alexander stated that the individual members of the TRU would generally leave their home locations to set out for Windsor at approximately 7:00 a.m. on Monday mornings. He further stated that they would not work a full day on the last day of the workweek. This arrangement ensured that travel both to Windsor and back home was done within working hours. Mr. Alexander testified that the start time for the Windsor TRU was primarily 7:00 a.m. and that the days were generally twelve (12) hours in duration. He acknowledged that the workday could on occasion be shorter, such as ten (10) or eleven (11) hours. He stated that some flexibility was necessary in order to account for unexpected developments arising from weather conditions or equipment or car related problems. It was Mr. Alexander?s evidence that the Transportation Enforcement Officers 2 were told three (3) weeks in advance of the following: (i) if they would be working on the TRU; (ii) their start time on Monday morning; (iii) their end time on Thursday; and (iv) the times they would be working during the week. He observed, however, that the scheduled hours were not ?set in stone?. In this regard, Mr. Alexander advised that team members would get together at the end of the day to discuss what they would be doing on the 16 following day and their hours of work for that day. Mr. Alexander reiterated that there was an element of flexibility in respect of the daily hours of work despite the fact the schedule was established in advance. Mr. Alexander stated that he considered the CWWA?s of each member of the TRU when scheduling their work. He noted that all of the CWWA?s for the team members provided for a total of three hundred and sixty-two and one half (362.5) hours of work during a ten (10) week period. It was Mr. Alexander?s evidence that he focused on this formula when scheduling hours for the TRU. He maintained that everyone on the team was aware that this is what he ?worked around?. Mr. Alexander suggested that it would have been impossible to replicate the exact hours as set out in the CWWA?s. By way of example, he noted that Mr. Elliott worked night and weekend shifts when in Putnam. Given the nature and design of the TRU project, these shifts were not worked by Mr. Elliott when he was in Windsor. Mr. Alexander emphasized that all of the TRU members agreed to this type of change to their schedule. Mr. Alexander stated that there was only one (1) claim for overtime received from the Windsor TRU. That claim was submitted by an Officer who had been assaulted and was required to spend additional time with the O.P.P. His work day, as a consequence, was extended to approximately fourteen (14) hours. Mr. Alexander commented that the overtime in that instance was not scheduled or planned for in advance. I was left with the impression that this overtime was paid. 17 Mr. Alexander testified that there was some flexibility in the daily hours set out in the Putnam CWWA. More specifically, it was his evidence that these hours could be changed for a variety of reasons, including the following: at the Employer?s or the employee?s request; because of Court commitments; or due to some special initiative or other enforcement operation. Mr. Crawford?s evidence was to the same effect vis a vis the daily hours set out in the CWWA covering enforcement staff assigned to the Essex South Truck Inspection Station. He stated that these hours could be changed on the basis of a staff request, an Employer initiated project involving work in another location, or an approved project initiated by the employees. It was the thrust of Mr. Crawford?s evidence that changes to the daily hours of work were not seen as problematic as long as the hours worked over the ten (10) week period totalled three hundred and sixty-two and one half (362.5). Mr. Crawford asserted that there were no claims for overtime when shifts were changed for any of the above reasons. Mr. Blackmore, Mr. Alexander and Mr. Crawford all testified that Transportation Enforcement Officers, in the past, have crossed Districts to perform enforcement work and/or have performed work in their Districts away from their headquarters. The evidence of these witnesses may be summarized as follows: i. Mr. Blackmore referenced the Road Check Program. This is a bench marking exercise conducted by the Ministry of Transportation on an annual basis at a number of sites across Ontario, including the Essex South, Putnam and Sarnia Truck Inspection Stations. The program, which started in the 1990?s, runs for a three (3) day period in early June of each year. It 18 involves random inspection of commercial motor vehicles in order to determine the average level of mechanical fitness of vehicles operating in the Province. Mr. Blackmore advised that Transportation Enforcement Officers from the Waterloo District have been redeployed on numerous occasions to Putnam, Sarnia and Windsor to assist with the Road Check Program. He testified that such redeployment has never resulted in a grievance; ii. Mr. Alexander similarly stated that Transportation Enforcement Officers 2 and Transportation Enforcement Officers 3 were brought into Putnam from the Waterloo District to help with the Road Check Program. He noted that while at Putnam, some of the former Officers worked twelve (12) hour shifts notwithstanding the fact that their own CWWA provided for a nine and one quarter (9.25) hour day. He further noted that the latter Officers worked twelve (12) hour shifts while on the project. I was told that the Transportation Enforcement Officers 3 were not subject to the CWWA applicable to the Transportation Enforcement Officers 2. Mr. Alexander advised that the Waterloo District Officers did not claim any overtime with respect to their work on the Road Check Program; iii. Mr. Blackmore testified that redeployment of Transportation Enforcement Officers across District lines has also occurred in respect of joint enforcement initiatives with other law enforcement agencies. He referenced one (1) such program in Windsor, involving the Windsor Police, the R.C.M.P. and Canada Customs staff and another in Chatham involving the Chatham-Kent Police Force. Mr. Crawford advised that enforcement staff from the Essex South Truck Inspection Station have participated in joint enforcement initiatives with the Chatham-Kent Police. In this regard, he stated that when a Transportation Enforcement Officer works on such a project, he monitors their hours to ensure that the three hundred and sixty-two and one half (362.5) hour threshold is met; iv. Mr. Blackmore stated that, periodically, Transportation Enforcement Officers have been assigned project work outside of their normal work location. He advised that, 19 in the past, Transportation Enforcement Officers headquartered at one Truck Inspection Station would be assigned to assist with a project ongoing at another Inspection Station. Mr. Crawford, in his evidence, mentioned an example where the Windsor based Mechanic assisted on investigations in Chatham and Sarnia. Mr. Blackmore advised that no grievances have been filed in respect of this type of project work; and v. Lastly, Mr. Crawford mentioned an occasion when ?Air Brake? Officers from the Waterloo District travelled to Windsor to work out of the Essex South Truck Inspection Station. He observed that there were no overtime claims in respect of this work submitted by either the Waterloo or Essex South personnel. Mr. Elliott testified that he also worked on the TRU in Caledonia, Sarnia, the Waterloo District and in Chatham-Kent. He estimated that, in the period April 2005 to May 2006, he spent between thirty percent (30%) and forty percent (40%) of his time working outside of the London District. The evidence was not entirely clear as to Mr. Elliott?s hours of work when he was assigned to projects at the aforementioned locations. Mr. Elliott did testify that the ten (10) to fifteen (15) shifts he worked in the Chatham-Kent area were all of twelve (12) hours duration. It was his further evidence that neither he nor the Union filed a grievance with respect to his hours of work when engaged in duties outside of his home District. Ms. Campeau testified that she has never been assigned to work as a Transportation Enforcement Officer 2 outside of the Windsor District. She acknowledged that she has performed blitzes in Chatham-Kent on occasion. It was 20 her evidence that approximately ninety-five percent (95%) of her time is spent working at the Essex South Truck Inspection Station and in the surrounding area. Ms. Campeau advised that, apart from the TRU, she could only recall one (1) prior instance where Transportation Enforcement Officers from outside her District were assigned duties in Windsor. This occurred in the 1999-2000 period when the Essex South Truck Inspection Station became a twenty-four/seven (24/7) operation. At that time, the local complement was insufficient to staff the Inspection Station around the clock. As a consequence, Officers from various locations across the Province were brought in to Windsor to supplement the existing staff. Ms. Campeau recalled that this arrangement went on for about a year. It was her evidence that the out-of-town employees were put on twelve (12) hour shifts and that they were given travel time both to and from their home base. She advised that, at that time, Transportation Enforcement Officers at the Essex South Truck Inspection Station worked nine (9) hour shifts. Ms. Campeau testified that, as a consequence of this situation, a grievance was filed pursuant to which she and the other Essex South Officers claimed that they too should have access to overtime hours. I was informed that the parties were able to reach a settlement of the grievance. Ms. Campeau advised that she filed a grievance in this case because she was trained for, and could have performed, the work done by the TRU team. She 21 added that it was her view that Officers assigned to the Essex South Truck Inspection Station ?should do the work in this area?. Mr. Blackmore expressed the opinion that the 1999-2000 situation was different from what occurred with the TRU. First, he noted that the earlier initiative went on for an extensive period of time for purposes of supplementing the regular complement. More importantly, Mr. Blackmore stressed that overtime was then scheduled and paid. He reiterated that no overtime was authorized for the TRU and that, in fact, a specific direction had been given to the contrary. Mr. Blackmore testified that he did have some prior discussion with the Transportation Enforcement Officers at the Essex South Truck Inspection Station about the distribution of overtime. The issue was raised in his letter dated May 11, 2004 to Mr. Tom Grimes, President of OPSEU Local 140. Mr. Blackmore in this correspondence was responding to an earlier memo from Mr. Grimes concerning ?the issues related to shift changes on the Easter long weekend?. The relevant paragraph of Mr. Blackmore?s letter reads: ?Although I believe the issue of overtime distribution is unrelated to this issue I support the fair and equitable distribution of overtime work after ensuring all operational requirements have been met. As you know there are very limited opportunities for overtime work, but I would be prepared to develop a system and review it with you prior to its implementation. I would anticipate that this system would encompass all Motor Carrier Enforcement within Southwest Region and on such I would expect each local to provide their comments. Any feedback would be required within 2 weeks of drafting the document so as to ensure implementation in an expedient manner.? 22 Mr. Blackmore testified that he expected to receive a proposal from the Union in respect of the above. It was his evidence, however, that he did not receive a response from Mr. Grimes at the time. He, therefore, assumed it was a non-issue. Mr. Blackmore stated that he did not subsequently receive any demand from Mr. Grimes for a local agreement relating to the fair and equitable distribution of overtime. Mr. Grimes was not called as a witness to explain his understanding of the above referenced letter and what was expected to occur thereafter. The parties referenced the following contractual provisions in support of their respective positions: ARTICLE 2 ? MANAGEMENT RIGHTS 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify-positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. ARTICLE 10 ? WORK ARRANGEMENTS COMPRESSED WORK WEEK ARRANGEMENTS 10.1 It is understood that other arrangements regarding 23 hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. The model arrangement with respect to compressed work week arrangements is set out below: ????????????????????. ARTICLE 22 ? GRIEVANCE PROCEDURE 22.14 GENERAL ????????????????????. 22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements. ARTICLE UN2 ? HOURS OF WORK UN2.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one quarter (36 ¼) hours per week and seven and one quarter (7 ¼) hours per day. ????????????????????.. ARTICLE UN5 ? SHIFT SCHEDULES UN5.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he or she shall be paid time and one half (1 ½) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry?s control. ????????????????????. 24 UN5.3 A shift may be changed without any premium or penalty if agreed upon between the employee and the ministry. ARTICLE UN8 ? OVERTIME UN8.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 ½) times the employee?s basic hourly rate. UN8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all of its operational requirements are met. UN8.2.2 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. UN8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one- quarter (7 ¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate. ????????????????????.. Counsel for the Union submitted that this case, in substance, is ?a simple overtime grievance?. On his analysis, when Mr. Elliott and other members of the TRU team worked in the Windsor area beyond seven and one quarter (7.25) hours in a day, they were working overtime under article UN 8.3.1 of the collective agreement. He noted that Transportation Enforcement Officers 2 are Schedule 3.7 employees and that there was no dispute between the parties that those on the TRU worked in excess of seven and one quarter (7.25) hours per day while in the 25 Windsor District on the project. Accordingly, counsel argued that there was overtime available. From the perspective of the Union, the overtime available should have been distributed at the local workplace in a fair and equitable manner pursuant to article UN 8.2.1. Counsel initially submitted that the distribution should have been to those employees who normally performed the work at the local workplace, that is, amongst the grievors. In response to a question from this Vice-Chair, he responded that, at the outset, the overtime in issue should have been shared by the Transportation Enforcement Officers 2 at the Essex South Truck Inspection Station and the TRU members. Counsel noted, however, that the out-of-towners waived any claim for overtime in this instance through their failure to file a grievance on the point. Counsel again referenced the phrase ?at the local workplace? in article UN 8.2.1 and suggested that it clearly evidenced a contractual intent that the Essex South Officers were entitled to some overtime in the circumstances of this case. He observed, however, that they were not even considered for the overtime in issue. Counsel further submitted that the obligation in the article provides for more than just the development of a method to distribute overtime in a fair and equitable way. On his reading, there exists a related duty to actually implement the method. He argued that to claim otherwise would be ?ridiculous?, as it would not serve or promote any sound labour relations objective. Put a somewhat different way, 26 counsel suggested that article UN 8.2.1 was intended by the parties to have both form and substance. Counsel for the Union acknowledged that the obligation in article UN 8.2.1 is subject to the Employer ensuring that ?all its operational requirements are met?. It was his submission that the Employer, on the facts of this case, failed to establish that its operational requirements mandated it had to act as it did. Counsel argued that there were at least eight (8) Transportation Enforcement Officers 2 who could have been available from the existing complement to work the overtime in question. He asserted that the Essex South Officers should have been the ones to determine if they had sufficient recovery time. He accused the Employer of taking, what he described as, ?a paternalistic approach?. Counsel submitted that, based on the evidence and argument, he had made out a valid claim to overtime. He asserted that, as a consequence, the onus shifted to the Employer to establish its defences. He then proceeded to address what he anticipated to be the Employer?s response on the merits. Counsel submitted that Mr. Elliott and the other TRU members were not working on their own CWWA?s when they performed their duties on the project in the Windsor District. It was his position that, as a matter of mixed fact and law, the CWWA?s did not follow these employees to Windsor. By way of example, counsel referenced article 1 of Mr. Elliott?s CWWA. He noted that it spoke to a specific location, this being the Putnam Truck Inspection Stations. On his analysis, 27 the hours described in article 2.1 of the aforementioned CWWA were ?connected? to that location. Counsel further observed that the several Position Description Reports for Transportation Enforcement Officer 2, which were filed in this proceeding, all indicate that the purpose of the position is the performance of identified duties and responsibilities ?within an assigned geographic area?. It was the thrust of his submission that, given these geographic limitations, an employee such as Mr. Elliott would not, in effect, take his CWWA with him when he travelled to Windsor. Counsel asserted that Mr. Elliott and the others would not work off the Essex South CWWA when engaged in TRU activities, as they were not assigned to that location. Accordingly, he argued that the Employer could not successfully advance the proposition that there was no overtime to claim. In his judgment, it was immaterial that Mr. Elliott and the other out-of-town Officers did not work more than three hundred and sixty-two and one half (362.5) hours in a ten (10) week period while assigned to TRU duties in the Windsor District. Counsel argued, in the alternative, that if the CWWA did follow Mr. Elliott to Windsor, he did not work the hours and shifts specified therein. He noted, in this regard, that the shifts worked while in Windsor were not all of twelve (12) hours duration, and that there were no night or weekend shifts. From his perspective, the evidence of Mr. Blackmore and Mr. Elliott, relating to the hours of the TRU, disclosed that there never was any intent to follow the CWWA?s attached to the home locations of those employees involved in the project. 28 Counsel for the Union also submitted that the Employer was not entitled to rely on the doctrine of estoppel as a defence to the Union?s claim in the instant proceeding. He advanced the following arguments in support of this submission: (i) there was no evidence of a consistent and widespread practice of out-of-town Transportation Enforcement Officers working in excess of seven and one quarter (7.25) hours per day when in the Windsor District; (ii) much of the evidence of Mr. Blackmore and Mr. Alexander was lacking in detail with respect to the hours of work of those Officers; (iii) additionally, a considerable portion of their evidence focused on locations other than Windsor and/or related to events subsequent to the filing of the present grievance; (iv) there was no evidence that the Union in Windsor possessed any significant knowledge of material facts relating to work which might have been performed by out-of-town Officers in the Windsor District or elsewhere; (v) the evidence indicated that the practice in Windsor, as reflected by the 2000 grievance, was to challenge situations where out-of- town Officers were given overtime work at the expense of Transportation Enforcement Officers 2 assigned to the Essex South Truck Inspection Station; (vi) there was no evidence of any shared interpretation or demonstrated acquiescence on the part of the Union; and (vii) there was no evidence of any detrimental reliance on the part of the Employer. Counsel next referenced article UN 8.2.2 of the collective agreement, and more specifically the words ?an authorized period of work? contained therein. He 29 submitted that what has to be authorized is the performance of the work. On his view of the evidence, Mr. Alexander authorized ?every minute and hour? worked by Mr. Elliott. Counsel, as a consequence, asserted the Employer could not properly maintain that the hours worked by Mr. Elliott, in excess of seven and one- quarter (7.25) hours in a day, did not constitute overtime as they were not authorized as such. To repeat, it was the Union?s position that these excess hours were overtime that should have been distributed, at least in part, to the grievors. In summary, counsel for the Union suggested that, in this instance, the Employer was attempting ?to test out a new work schedule?, pursuant to which it could schedule employees whenever it wished as long as total hours of work did not exceed three hundred and sixty-two and one half (362.5) in any one (1) ten (10) week cycle. Counsel stressed that the TRU initiative, as implemented and scheduled in this case, had not been negotiated with the Union and was inconsistent with several provisions of the collective agreement. I was asked, therefore, to uphold the grievances and to remit the issue of remedy to the parties. I was further requested, in this regard, to issue a specific direction that the Employer provide full disclosure to the Union within thirty (30) days of all hours worked by all bargaining unit persons on the TRU project in Windsor from April 5, 2005 onwards. The Union relied on the following authorities in support of its position: Carter et al. 2291, 2292/86 (Knopf); Re The Crown in right of Ontario (Ministry of 30 the Attorney General) and Ontario Public Service Employees Union (Hunt et al.) th (2006), 154 L.A.C. (4) 304 (Abramsky); Re Lakehead District School Board and th Canadian Union of Public Employees, Local 2486 (2001), 96 L.A.C. (4) 315 (Luborsky); Thibert 3333/04 (Gray); Re Georgian College of Applied Arts and th Technology and Ontario Public Service Employees Union (1997), 59 L.A.C. (4) 129 (Schiff); Re City of Toronto and Canadian Union of Public Employees, Local th 416 (1998), 73 L.A.C. (4) 232 (Howe). Counsel for the Employer stated that the effect of a CWWA is to transfer an employee from the hours of work set out in article UN 2 to a different schedule. He observed that there was a need to make such an adjustment for Transportation Enforcement Officers because they work in a twenty-four/seven (24/7) operation. On his analysis, a CWWA is simply a different schedule of the hours of work for the employees covered thereunder. Counsel submitted that a CWWA is not ?limited by geography?, as claimed by the Union. It was the position of the Employer that a CWWA follows the employee to wherever they are directed to work. Counsel suggested that this was consistent with the management rights clause in article 2 of the collective agreement, pursuant to which the Employer has the right to direct the workforce and to determine the location of the workplace. He argued that the Union, in effect, was ?reading in huge changes? to article 2. Counsel cautioned that if I were to accept the Union?s position, it would constitute an amendment to the article. He stressed 31 that this Vice-Chair has no jurisdiction to issue a decision having such effect given the clear prohibition contained in article 22.14.6 of the collective agreement. Counsel further argued that there is nothing in article 10, which sets out a model CWWA, or in the actual CWWA?s filed in this proceeding, to indicate that a CWWA loses effect or becomes inoperative when an employee leaves their work area. He observed that a finding in the Union?s favour on this point would lead to ?a ridiculous result? as certain CWWA provisions, such as those relating to the short term sickness plan and vacation credits, would need to be prorated if an employee left their normal work location even for a brief or temporary period. Counsel also stated that acceptance of the Union?s position would mean that an employee would ?change from schedule to schedule? depending on where they were working at the time. He noted that the hours of an employee under UN2 do not change when they leave a certain geographical area. Counsel, therefore, questioned why hours would change for an employee working under a CWWA. From his perspective, such a requirement would make it impossible to effectively administer the collective agreement. Counsel noted that while Mr. Elliott was a member of the enforcement staff assigned to the Putnam Truck Inspection Stations, he did not exclusively work there or in the surrounding areas. In this regard, counsel referenced Mr. Elliott?s work on the Road Check and joint initiatives projects, as well as on the TRU. It was his submission that these assignments were contemplated under both the 32 CWWA and the Position Description Report for Transportation Enforcement Officer 2 at Putnam. With respect to the former, counsel reiterated that it would be improper to read in a geographic limitation to a CWWA. With respect to the latter, he observed that the work Mr. Elliott performed while on the projects was consistent with the duties and responsibilities listed in his job description. On counsel?s reading, the job description does not restrict the performance of the duties to a specific geographic location. Rather, they may be performed anywhere the employee is assigned. In the alternative, counsel argued that management?s right to assign work and to determine work location cannot be defeated by the terms of a job description. Counsel for the Employer asserted that the Union?s position would ?crumble? on a finding that a CWWA follows the employee. He submitted that if a CWWA was portable, entitlement to overtime thereunder would have to be assessed under a provision like article 3.1 of the Putnam agreement. Entitlement would not be measured against the seven and one quarter (7.25) hour standard. On counsel?s review of the evidence, the TRU members, subject to two (2) immaterial exceptions, did not work or claim any overtime under the provisions of their CWWA?s while in the Windsor District. I was asked to conclude that, as a consequence, the grievors could not advance a claim to something that did not exist. 33 Counsel submitted that I should look to the evidence of past practice if I found article 1 of the CWWA?s, as filed in this proceeding, to be ambiguous. More specifically, he noted the following: (i) Transportation Enforcement Officers 2, who normally worked at Putnam, Windsor, or in the Waterloo District, did not claim overtime if their daily hours exceeded seven and one quarter (7.25) hours when on a special project outside of their regular work location; and (ii) the out-of- town Officers on the TRU team did not claim overtime, or file any grievances, in respect of their work beyond seven and one quarter (7.25) hours per day. Counsel described this practice as consistent and submitted that it clearly demonstrated that all of these employees believed their CWWA?s followed them to other work locations, including work in other Districts. Put another way, he claimed that the past practice was inconsistent with the Union?s position to the effect the CWWA?s became inoperative once the employees left their normal work location. In the further alternative, it was the Employer?s position that, in the circumstances of this case, the Union should be estopped from asserting a right to overtime when an employee on a CWWA works more than seven and one quarter (7.25) hours per day when outside of their District. Counsel repeated that such a claim has never previously been advanced. For the same reason, he submitted that the Union should be estopped from asserting that CWWA?s are subject to a geographic restriction. 34 Counsel for the Employer stressed that the TRU members worked their CWWA schedule and did not claim any overtime for their efforts in the Windsor District. He questioned how the Essex South Officers could lay claim to overtime that was not worked, either by them or by members of the TRU. Counsel further noted that the Employer did not authorize any overtime for either group of employees in this instance. He, therefore, submitted that the work in issue could not be treated as overtime for the purposes of both articles UN 8.2.1 and UN 8.2.2. Simply stated, in his judgment, there was nothing to fairly and equitably distribute. Counsel claimed it was ?fatal? that the Union never claimed overtime for the out- of-towners who actually performed the work in question. Counsel noted that at the meeting just prior to the commencement of the TRU project, the employees who had been selected to work on same were told their hours would vary and be flexible. He added that it was also made clear to them that they would remain on their ten (10) week cycle and that there would be no night shifts or weekend work. Counsel stressed that the Transportation Enforcement Officers 2 who attended the meeting all agreed to the shift changes. He observed that it was not unusual for shifts to be changed for officers on a CWWA for the reasons provided by Mr. Alexander and Mr. Crawford. It was counsel?s submission that the changes, as agreed to, were encompassed by article UN 5.3. That article, as reproduced above, provides that ?a shift may be changed without any premium or penalty if agreed upon between the employee and the 35 ministry?. Counsel questioned how the Employer could be confronted by an overtime claim by the grievors, when the TRU members who actually worked the schedule were themselves precluded from advancing such a claim. In his opinion, a decision to allow the grievances would render article UN 5.3 virtually meaningless. Counsel for the Employer also referred to Mr. Alexander?s evidence that the TRU team was provided with notice of their work schedule some three (3) weeks in advance. It was his submission that this period of advance notice, in conjunction with the employees? agreement to more flexible hours, satisfied the requirements of article UN 5.1. Counsel acknowledged that the daily schedule of the TRU team was ?fine-tuned? from time to time while the team was on the road. He, again, stressed that any changes to daily hours were agreed to by all concerned. Counsel submitted that if the TRU members could not, and in fact did not, claim premium payment under article UN 5.1, it would be difficult to understand how the grievors could obtain the premium. Counsel suggested that after the initial meeting with the TRU team, the newly scheduled days became regular working days for purposes of the application of the overtime article in the respective CWWA?s. He repeated, however, that no overtime claims were submitted by the TRU team with respect to their work in the Windsor District, subject to two (2) exceptions. The first involved a day on which Mr. Elliott worked approximately fourteen (14) hours because of a need to remain 36 in Court for an extended period. Counsel asserted that this extra time was not, in substance, TRU work. The second involved an Officer who had to spend additional time with the O.P.P. as he was the subject of an assault. Counsel maintained that the two (2) to three (3) hours of overtime that resulted could not be viewed as planned overtime which might otherwise have been available to the grievors. Lastly, counsel reviewed the daily hours actually worked by Mr. Elliott when on the TRU. On his account, the number of twelve (12) hour shifts outnumbered each of the shifts of lesser duration. He suggested that this reflected the agreement reached at the outset, namely, that shifts would generally be twelve (12) hours in length subject to some necessary flexibility. In the final analysis, counsel considered it material that hours on the project were managed so as to ensure that each of the TRU team would work three hundred and sixty-two and one half (362.5) hours during any ten (10) week period. As an alternate argument, counsel submitted that I should again look to past practice if I considered article 3.1 of the CWWA to be ambiguous. On his view of the evidence, when Transportation Enforcement Officers worked on the various projects mentioned changes were made to their schedule without any overtime being claimed or paid. Counsel disagreed with the Union?s reading of article UN 8.2.1. He interpreted the provision to mean that in the event the Employer assigns overtime to the Officers at the Essex South Truck Inspection Station, it must do so on a fair 37 and equitable basis. On his reading, ?operational requirements? represent a priority, and not an exception, under the article. Counsel submitted that valid operational requirements were present in this case, these being, the concern for employee fatigue; the need to maintain the Essex South Truck Inspection Station fully operational during the period of the TRU; the lack of resources to allocate for overtime; and the initial plan for the project which contemplated it would be administered without payment of any overtime. Counsel repeated that the claim in this instance was advanced by employees who did not perform the work in issue. Counsel further observed that there exists no local protocol for the distribution of overtime at the Essex South Truck Inspection Station. He noted that the lack of such a protocol has not been grieved by the Union. It was his submission that a protocol must exist before a grievance, alleging a failure to distribute overtime in a fair and equitable manner, can proceed. Counsel considered it material that Mr. Grimes failed to respond to Mr. Blackmore?s letter of May 11, 2004. Finally, counsel argued that the situation which occurred in 2000 was different from the TRU, Road Check and joint initiative projects. He noted that in 2000, the overtime was planned for and that the out-of-town Officers were permitted to travel outside of the working day, whereas in the present case the Transportation Enforcement Officers were told there would not be overtime and they were to travel within their working hours. Counsel reiterated that overtime 38 was not claimed or paid in respect of any of the post-2000 projects. It was his submission that the Employer was entitled to rely on that past practice and on the fact that no grievances were ever filed by the Union contesting same. Ultimately, it was the Employer?s position that it acted properly, and within the confines of the collective agreement, in terms of its management of the TRU. I was accordingly urged to dismiss the grievances. The Employer relied on the following authorities to support its position: Lauzon 356/93 (Kaplan); Metropolitan Separate School Board and Canadian th Union of Public Employees, Local 1280 (1997), 68 L.A.C. (4) 265 (Brown); Group Grievance 0488/96 (Abramsky); Union Grievance 1995/99 (Brown); Union Grievance 0352/01 (Fisher); Speers et al. 1461, 1462, 1463/85 (Kennedy); th Weyerhaeuser Chapleau and I.W.A.-Canada, Local 2995 (2001), 98 L.A.C. (4) 150 (Tacon); Cardinal Transportation B.C. Inc. and Canadian Union of Public th Employees, Local 561 (1997), 62 L.A.C. (4) 230 (Devine); Union Grievance 0236/98 (Lee). Union counsel?s reply included the following submissions: i. CWWA?s are negotiated to address operational requirements at a specific location and their schedules are tailored for that workplace. This is evidenced by the language of article 1 of the CWWA?s filed in this proceeding, which speak of ?Work Unit? and employees ?assigned to? a defined location; ii. CWWA?s should be narrowly construed as they represent an exception to the Hours of Work provisions contained in the collective agreement; 39 iii. CWWA?s do not follow employees when they travel to another work area. In that event, the work schedule of a Transportation Enforcement Officer 2 reverts to a seven and one quarter (7.25) hour day; iv. If a CWWA did follow employees, they would have to work the shifts described therein. That did not occur in this instance on the evidence of Mr. Elliott; v. Article UN 5.1 speaks of posted shift schedules which set out the hours of work. What the TRU members were told about their hours of work was not the equivalent of a schedule for purposes of the article. From the perspective of the Union, the Employer?s position ?rules out any significance? of article UN 5.1; vi. Article UN 5.3 applies to the switching of shifts on a defined schedule. It cannot apply to the situation here where there were no set hours and daily hours were routinely set when the TRU members met in the evening to decide upon the next day?s work. In counsel?s words, article UN 5.3 cannot serve to ?waive everything?; vii. Cost is not an operational requirement under article UN 8.2.1. Counsel suggested that, in any event, it might have been less costly for the Employer to have used the Essex South Officers on the TRU instead of bringing in Officers from the outside; and viii. It is irrelevant that the TRU members may have agreed to forego any claims to overtime and that the Union did not grieve on their behalf. The instant dispute must be determined through an interpretation of the collective agreement. Without doubt, the Employer has the right to set up a special project, such as the TRU, to address an identified need. In so doing, it may direct employees to perform the required duties at a location other than their regular work location. These rights flow from article 2.1 of the collective agreement pursuant to which 40 management is accorded, inter alia, the authority to manage the business and direct the workforce, assign and direct employees, and determine organization, staffing levels, work methods and the location of the workplace. I accept, as a general proposition, that these rights cannot be defeated or circumscribed by the terms of a position description. Rather, the rights bestowed on management by article 2.1 are subject only to the provisions of the Central Collective Agreement or any other collective agreement to which the parties are bound. In the factual context of this case, I am satisfied the Employer could determine that the work in issue was to be performed by Transportation Enforcement Officers 2 from outside the Essex South Truck Inspection Station provided the decision was premised on legitimate operational reasons and did not contravene any other provisions of the collective agreement. After full consideration of the evidence and argument, I accept the Employer?s submission that Mr. Elliott and the other members of the TRU team were covered by their respective CWWA?s when they were assigned to the Windsor District on the project. I agree, to use the words of Employer counsel, that their CWWA?s ?followed? them off site to Windsor. I recognize that Mr. Elliott?s CWWA provided that it covered ?all Enforcement Staff assigned to the Putnam North Truck Inspection Station and the Putnam South Truck Inspection Station? and that it described those work locations as twenty-four/seven (24/7) operations. Clearly, the CWWA applied to Mr. Elliott?s work at the 41 aforementioned Truck Inspection Stations. I do not, however, read article 1 of his CWWA as restricting its effect to those locations and the surrounding areas. I have not been persuaded that the language used was intended to impose a geographic limitation on the operation on the CWWA. I think that the parties would have chosen more precise language if that was their real intent.On my reading, the language in issue is more descriptive of the employees captured by the agreement. I further accept the Employer?s argument that a contrary finding would create significant impediments to the effective administration of the collective agreement with respect to employees covered by a CWWA. In the alternative, if article 1 of the CWWA?s is considered to be ambiguous, I note that my interpretation of same is consistent with how the CWWA?s have been administered and treated in the past. It is clear on the evidence that Mr. Elliott, and other Transportation Enforcement Officers from the Waterloo District, worked outside of their Districts on special projects on numerous occasions over the course of several years prior to the filing of the instant grievances. Additionally, Mr. Crawford advised that Transportation Enforcement Officers 2 from the Essex South Truck Inspection Station were assigned to outside projects in Sarnia and the Chatham-Kent area. When all of these Officers were so assigned, they did not claim for any overtime and no grievances were filed, by either them or the Union, challenging their hours of work or schedule. This is consistent with a belief that the employees continued to be covered by their CWWA?s when 42 engaged in this work away from their headquarters. To the same effect, I consider it material that Mr. Elliott and the other TRU members did not claim any overtime for their work in the Windsor District. I do not consider the two (2) exceptions referenced earlier to be relevant to the resolution of this dispute. The decision not to claim overtime is supportive of an acceptance on the part of the TRU members that they were working under their CWWA?s while in Windsor on the project. I note, in this regard, that Mr. Elliott testified that the Enforcement Clerk in the London District kept close track of his hours to ensure compliance with the total hours set out in the Putnam CWWA. As stated above, Mr. Elliott, and other Transportation Enforcement Officers from the Waterloo District, worked outside of their Districts on numerous special projects. Similarly, Officers assigned to the Essex South Truck Inspection Station travelled to other areas within the Windsor District to engage in project work. Apart from the situation in 2000 at Essex South, the employees who normally worked at the project locations never claimed overtime or filed a grievance in respect of same. More specifically, they did not assert that they were entitled to all, or part, of any overtime worked by those Officers brought in to perform work in their geographic area. This history is also consistent with the contractual interpretation provided above to the effect that CWWA?s follow employees when they are assigned work outside of their Districts or regular work locations. 43 The evidence discloses that when Mr. Elliott worked on the TRU, his schedule was not in absolute conformity with the Putnam CWWA, in the following respects: i. Not all of his shifts were twelve (12) hours in length. On the incomplete evidence before me, only six (6) of the eighteen (18) Daily Input Forms documented shifts of that duration; ii. Mr. Elliott did not work any night or weekend shifts; and iii. His day shifts did not all start at 7:00 a.m. I do not agree that the above discrepancies, between what was actually worked while on the TRU project and the hours set out in Mr. Elliott?s CWWA, establishes he was not working on, or covered by, his CWWA when in the Windsor District. I so conclude for two (2) reasons. First, it is apparent from the evidence of Mr. Alexander and Mr. Crawford that CWWA?s are flexibly administered and subject to change, for a variety of reasons, even at their home locations. If CWWA?s can be flexibly administered and changed there, I fail to see why they could not be similarly treated when they followed the employees working on the TRU. Second, there is no dispute about the fact that this group of Officers agreed to this element of flexibility and to some departure from the schedule of hours contained in their home CWWA?s. It is clear that they so agreed at both the initial meeting prior to the start of the TRU initiative and in their informal evening discussions during the workweek. In my judgment, the 44 agreements were sufficient for purposes of article UN 5.3 of the collective agreement. Mr. Alexander was definitely of the view that TRU team members were captured by their respective CWWA?s when working in the Windsor District. While acknowledging the flexibility described above, it was his evidence that the primary focus of his concern was to ensure the Officers worked no more than three hundred and sixty-two and one half (362.5) hours over a ten (10) week period so as to be in conformity with their CWWA?s. I note Mr. Crawford testified that he adopted an identical approach when monitoring the hours of Officers from the Essex South Truck Inspection Station when they were involved in external projects. I have determined, in effect, that the work performed by the TRU members was done in accordance with their CWWA?s. Given the language of the overtime articles of these agreements, none of the time worked could be considered as overtime. As mentioned above, the Officers on the TRU project never claimed, nor were they paid, any overtime. Indeed, they were informed at the outset that the project would be scheduled in a way which would not require the payment of overtime. If the TRU team itself could not, and did not, claim overtime for the time they actually worked, it is difficult to comprehend how the Essex South Officers could legitimately assert it was overtime to which they were entitled. 45 I accept that the TRU work was work that the grievors were qualified to perform. The work, essentially, called for concentrated patrols and more enhanced or stricter enforcement. I have been convinced, however, that the situation with the TRU was materially different from the circumstances in 2000 which led to a grievance and a subsequent settlement. In 2000, employees were brought into the Essex South Truck Inspection Station to supplement its daily operations and to ensure it could effectively operate on a twenty-four/seven (24/7) basis. I was left with the impression that the out-of-towners generally performed the same duties as the Essex South Officers in the period they worked out of the Inspection Station. What occurred with the TRU project can be distinguished factually, as the two (2) groups of employees did not work side by side doing much the same work. In this instance, the TRU team spent the vast majority of their working hours blitzing the bypass routes in an effort to catch drivers attempting to evade the inspection process. While they were doing so, the grievors continued to perform their normal duties at or around the Essex South Truck Inspection Station. Another difference is that in 2000, the out-of-town Officers were actually scheduled in a way that required the payment of overtime. Overtime for them was both authorized and paid. In the present case, in contrast, no overtime was authorized, claimed or paid in relation to the TRU project. If the facts now before me were similar to what occurred in 2000, I think that the grievors would have a more supportable claim. In that event, it would be difficult to justify why two (2) groups of employees 46 doing the same work at the same location should be treated differently for the purpose of distributing overtime. As an aside, I note Mr. Crawford?s evidence that Airbrake Officers from the Waterloo District travelled to the Essex South Truck Inspection Station to work on a Road Check program. He testified that they did not claim any overtime for their efforts. More importantly, the Essex South Officers did not then assert a right to overtime. At first impression, it would seem that the grievors have taken a completely contrary approach in this instance. In any event, I have not attached much weight to this evidence as it is not entirely clear whether this particular Road Check project preceded or followed the filing of the instant grievances. I consider it significant that the grievors did not lose any work over the period of the TRU project. They continued to work three hundred and sixty-two and one half (362.5) hours over the ten (10) week period as provided for in their CWWA. In this respect, their hours mirrored those worked by the out-of-town Officers. In substance, the grievors claim that their hours should have been increased, at the expense of the TRU team members, notwithstanding that all of the CWWA?s provided for the same number of total hours and the same shift length. I have not been convinced of the merit of such claim. I have earlier determined that the evidence supports a conclusion that article UN 5.3 was complied with in respect of the agreement to change shifts. I do not think that any change thereunder must be to another defined shift on the schedule. 47 I prefer to construe the provision more broadly. I am satisfied that it would contemplate the type of changes which occurred here. The evidence with respect to the change to a posted schedule is not so clear. Mr. Alexander, as noted, testified that TRU members were given notice of their work schedule some three (3) weeks in advance. On the surface, this period of notice would seem to be sufficient for the purposes of article UN 5.1. I was left with some uncertainty, however, as to how this notice was provided and what it contained in terms of detail. It is, therefore, difficult to conclusively determine if the notice requirement under article UN 5.1 was fully adhered to in a strict sense. In my judgment, there is no need to resolve this doubt. If the article was breached because of lack of notice, a premium would be payable to the TRU members who actually worked the changed schedule. This group, as stated, did not claim any premium. In the final analysis, I have not been persuaded that a failure to comply with article UN 5.1 would have the effect of creating an overtime opportunity for the grievors. I have also not been persuaded that the grievors had a contractual right to claim the overtime here in issue. The sole collective agreement provision suggesting such right might exist is article UN 8.2.1. Under the article, the Employer agrees ?to develop methods of distributing overtime at the local workplace that are fair and equitable?. Counsel for the Employer in his argument stated that the article could not assist the Union in this case because no such 48 methods have been developed for the Essex South Truck Inspection Station. I have some difficulty accepting this argument, as it would permit an Employer to distribute overtime on some basis that is not fair and equitable in the absence of a developed protocol. I am inclined to think that the wording of article UN 8.2.1. contemplates that overtime is to be distributed in a fair and equitable manner and that the obligation to ?develop methods? is there to ensure that appropriate procedures or processes are in place to effect that contractual objective. It is unnecessary, however, to resolve this issue of interpretation, as I am satisfied that the Employer had valid operational reasons or requirements for implementing the TRU project as it did. I accept Mr. Blackmore?s evidence that to effectively run the project, the Essex South Truck Inspection Station had to operate at full capacity through the use of its entire complement of staff. If the Inspection Station had to reduce its hours, or close, such a development would seriously undermine or defeat the objective of the TRU program as, in that event, truckers so inclined would not have to bypass the Inspection Station to avoid inspection. Additionally, I am satisfied that the Employer could properly attempt to implement the TRU project in a manner which would not require the provision of overtime. The use of the out-of-town Officers, working under the terms of their CWWA?s, accomplished that purpose. I find that this consideration relating to the cost of the project was both reasonable and appropriate in all of the circumstances of this case. 49 In opening argument, counsel for the Union asserted that the grievors had a right of first refusal to the overtime here in question. This position was not pursued in final argument. At that juncture, the Union rested its case on other grounds. As previously indicated, the parties advanced conflicting positions as to whether the doctrine of estoppel is applicable to the circumstances of this case. In light of the conclusions reached above, it is unnecessary, in my judgment, to address this alternative issue. To reiterate, I find that the TRU members worked under their CWWA?s when they were in the Windsor District. As a consequence, the hours they worked did not encompass any overtime. As a further consequence, if their hours did not involve overtime, there was nothing to distribute under article UN 8.2.1. Even if article UN 8.2.1 was applicable to the circumstances of this case, I am satisfied that the Employer demonstrated that it legitimately required, for sound operational reasons, that the TRU work be performed by the out-of-towners and not by the Transportation Enforcement Officers 2 assigned to the Essex South Truck Inspection Station. If there was a problem with how the Employer scheduled the out-of-town Officers, the persons with the right to claim a remedy were the TRU members themselves. I reject the Union?s submission that the Employer?s method of implementing the TRU project provided these grievors a right to lay claim to overtime opportunities. Additionally, I have been persuaded that the 50 aforementioned implementation did not contravene any provisions of the collective agreement. For all of the above reasons, the grievances are denied. th Dated at Toronto, Ontario this 28 day of January, 2008. M. V. Watters Vice-Chair