HomeMy WebLinkAboutHaslam 12-02-20 0-
IN THE MATTER OF AN ARBITRATION
BETWEEN
RENFREW COUNTY AND DISTRICT HEALTH UNIT
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 487
GRIEVANCE OF JOHN HASLAM
I
Arbitrator: Richard Brown
For the Union: Erin O'Hara
For the Employer: Lynn Hamden
Hearing: June 23, 2011 and January 17, 2012
Pembroke, Ontario
John Haslam is a public health inspector with the Renfrew County and District
Health Unit. This grievance was prompted by an alteration to his regular schedule
for the week commencing June 14, 2010. Inspectors normally work seven hours a
day from Monday to Friday, for a total of 35 hours weekly. They usually start work
at 8:30 a.m., finish at 4:30 p.m. and take a one-hour unpaid lunch. During the week
in question, the grievor worked nine hours on Thursday, starting at 1:30 p.m., and
five hours on Friday, starting at 8:30 a.m. He was paid a shift premium for the six
hours worked after 4:30 p.m. on Thursday. For the remaining 29 hours that week,
he received his regular rate of pay. The union contends he should have been paid at
the straight-time rate for 35 hours—i.e. rive days of seven hours each—and at the
overtime rate for the two hours in excess of seven worked on Thursday.
I
The provisions of the collective cited by counsel, relating to management rights
and hours of work, are set out below:
ARTICLE 2: MANAGEMENT RIGHTS
2.01
The union acknowledges that it is the exclusive function of management to
supervise, direct and control the Employer's operations subject to the terms
of this agreement, and without limiting the generality of the foregoing, such
function shall be deemed to included the right to: ...
(b) determine schedules, shifts, hours ...
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ARTICLE 12: HOURS OF WORK
12.01
(a) The core hours of work are between 8:00 h and 16:30 h, Monday to
Friday. ...
(c) A shift premium of one dollar and forty-five cents ($1.45) per hour will
be paid for work between 16:30 h and 8:00 h.
(d) A weekend premium of one dollar and sixty cents ($1.60) per hour will
be paid for work between midnight Friday and midnight Sunday.
12.02
(a) The hours of work for full time employees shall be 35 hours per week,
seven consecutive hours per day...
(b) The normal hours of work for part-time employees shall be up to seven
(7) consecutive hours per day... and up to five (5) days per week. ... [A]
part-time employee's hours may be increased or decreased by
management to meet operational requirements...
12.03
All time worked in excess of thirty-five (35) hours per week shall be
considered as overtime subject to the following conditions : ...
(b) Overtime shall be compensated at the rate of one and one half(1 1/2)
times the regular rate of pay for the hours worked. ...
12.05
Where less than forty-eight (48) hours notice ... of a change of schedule is
given formally to an employee, she shall be paid at the rate of time and one-
half(1 1/2) for all hours worked on the first shift of her new schedule.
The union relies upon article 12.02(a) stating "hours of work ... shall be 35
hours per week, seven consecutive hours per day." Adopting a literal reading of
this article, counsel for the union argues the employer is obliged to schedule five
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days of seven hours each, for a total of thirty five hours weekly. Based on the
premise that employees must be scheduled for a minimum of five seven-hour days,
the union contends that any work in excess of seven hours in a day, or any work in
excess of five days in a week, would exceed 35 weekly and, therefore, trigger an
entitlement to overtime pay. The employer reads the collective agreement
differently. Employer counsel claims article 12.02(a) merely describes the normal
work week and does not prohibit occasional departures from this norm.
II
The employer contends the past conduct of union officials demonstrates they then
read the collective agreement as management always has. During collective
bargaining in 2003, the union proposed amending article 12.03 to say all time
worked in excess of seven hours in a day, as well as time worked in excess of
thirty-five hours in a week, shall be considered overtime. This proposal was
eventually abandoned. In my view, this negotiation history does suggest the union
then interpreted the collective agreement as not conferring an entitlement to
overtime pay based upon the number of hours worked in a day.
The employer also led evidence of past practice. There have been a number
of instances over the years where employees were not paid overtime for working
more than seven hours daily or more than five days weekly, if their total hours for
the week did not exceed thirty-five. As the union argued, this evidence should be
assessed in accordance with the criteria set out in John Bertram & Sons (1967), 18
L.A.C. 263 (Weiler). In that case, Professor Weiler noted a management practice
should be used as an aide to interpretation only where the practice has been
followed for "a long period" and there has been knowing acquiescence throughout
by an official in the union hierarchy who has "real responsibility for the meaning
of the collective agreement."
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The evidence of past practice does not satisfy these criteria. For most of the
incidents cited by the employer, there is no evidence that what occurred was
known to a union officer at the time. The only exceptions are two instances where
the employee concerned was Brian Brohart. There was one incident in August of
2008, when Mr. Brohart was a union steward, and a second incident in January of
2010, when he was chief steward. (I have ignored instances where Mr. Brohart was
not paid overtime for travelling to a conference, because such time is to be paid at
a straight-time rate according to article 16.03) As a steward, Mr. Brohart did not
have responsibility for contract interpretation. He may have had this responsibility
as chief steward, but his acquiescence in this role was limited to a single occasion
and did not extend to a longstanding practice.
III
Several cases were cited by counsel. Three of them warrant close attention:
(1) Longo Brothers Fruit Market Inc. and United Food and Commercial Workers
Union (1995), 52 L.A.C. (0) 113 (Solomatenko); (2)Bristol Aerospace Limited
and National Automobile, Aerospace, Transportation and General Workers of
Canada, unreported award dated May 20, 2004 (Mary); and (3) Town of Windsor
and Canadian Union of Public Employees (2005), 94 C.L.A.S. 240 (Ashley).
The union relies upon Longo Brothers. The collective agreement there stated
the "basic work week ... made up of five days of eight consecutive hours ... shall be
worked Monday through Saturday." The grievance was filed because two
employees were regularly scheduled to work on Sunday and many others were
regularly scheduled to work 9 or 10 hours a day. Arbitrator Solomatenko
concluded the word "basic" meant the same as normal or regular. He then allowed
the grievance because the regular schedules of many employees did not comply
with the normal hours stipulated in the agreement.
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The facts in Longo Brothers did not require Mr. Solomatenko to decide
whether employees who were occasionally scheduled for duty outside the regular
work week would be entitled to overtime pay. Nonetheless, he made the following
comment about that scenario:
Notwithstanding that an employer must comply with the requirements of
scheduling within the definition of the regular or normal hours of work, that
does not preclude scheduling outside those hours. Scheduling outside the
regular hours of work, however, attracts the overtime rate of pay. (page 116;
emphasis added)
In my view, this comment is misguided because it suggests that entitlement to
overtime pay can be determined by reference to contractual provisions relating to
hours of work, without regard to those relating to overtime pay.
The employer cited two awards dismissing a grievance about an occasional
departure from the normal schedule specified in a collective agreement. In Bristol
Aerospace the collective agreement stated "the normal work week shall be five
days of eight hours per day, Monday to Friday inclusive." The grievance was filed
after six employees had been scheduled to work Tuesday to Saturday on two
occasions, for the normal eight hours per day and five days per week. The union
sought overtime pay and an order directing the employer not to use this schedule in
the future. Arbitrator Marr concluded the prescription of a "normal" work week of
Monday to Friday did not preclude occasional departures from this norm. The
grievance was dismissed.
Arbitrator Marr did not explain why he denied the union's claim for
overtime. The agreement created an entitlement to overtime pay for work in excess
of eight hours in a day or on an regular day off—i.e. a sixth day. I assume the
reason for not awarding overtime pay was that the employees concerned had
worked more than eight hours in a day or five days in a week, even though they
had occasionally worked irregular days of the week. In other words, working an
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irregular schedule on occasion did not create an entitlement to overtime pay
because the work performed did not qualify for such pay under the contractual
provision relating to overtime.
Much the same approach was taken in Town of Windsor where the collective
agreement stated:
[T]he normal work week ... shall be five days per week, Monday to Friday,
eight hours per day ... The normal work week shall not commence before
7:30 a.m. nor finish after 4:30 p.m.
The two grievors objected when they were assigned to clean streets on the
midnight shift for one week, working the normal eight hours per day and five days
per week. They were paid a shift premium of fifty cents per hour. The union
contended they were entitled to overtime pay. Arbitrator Ashley concluded the
designation of a "normal" work week did not preclude other scheduling
arrangements on occasion. I note that Arbitrator Ashley made this ruling subject to
the following caveat:
This is subject to the caveat that the employer's discretion to direct the
workforce under the management rights clause must be exercised ...
reasonably, in good faith and without discrimination. (para. 49)
Having concluded occasional night work was permitted, Arbitrator Ashley
went on to consider the union's claim for overtime pay. The agreement stated "all
time worked before or after the regular work day and the regular work week ...
shall be considered overtime." The arbitrator declined to award overtime pay
because the employees scheduled to work an irregular night shift for one week did
not "do extra work over and above their regular work" (para. 53). In other words,
they had not worked more than eight hours per day or more than five days per
week. Here too overtime pay was denied based on the contractual provision
relating to overtime, not the one relating to hours of work.
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I digress to note the Employment Standards Act is not at play in this award.
When the union first mentioned this statute on the second day of hearing, the
employer objected and the union did not press the point. Accordingly, how the Act
might apply to the facts at hand remains to be determined another day.
IV
The union advances a literal interpretation of article 12.02(a) stating "the hours of
work for full time employees shall be 35 hours per week, seven consecutive hours
per day."
Nonetheless, counsel for the union concedes this provision ought not to be
read in isolation. Rather, it must be construed with an eye to the rest of article 12
and the collective agreement as a whole. With this holistic approach in mind,
counsel contrasted the reference in article 12.02(a) to "hours of work" for full-time
employees with the reference in article 12.02(b) to "normal hours of work" for
part-time employees. I was asked to conclude the absence of the word "normal" in
article 12.02(a) indicates it establishes an absolute rule, admitting of no exceptions,
and not just a norm.
Employer counsel argues the union's interpretation of 12.02(a) conflicts
with 12.05 concerning notice of shift changes. In the context of an alteration of
schedule, the latter provision requires the employer to pay overtime for the first
shift worked if the employee did not receive 48 hours notice of the change. The
employer argues article 12.05 implies that no overtime need be paid if a schedule
change is made with proper notice, unless an employee works more than 35 hours
in a week.
The employer also notes an employee who works an extra long day is paid a
shift premium under article 12.01(c) for hours worked after 4:30,just as an
employee who works a sixth day gets a weekend premium under article 12.01(d). I
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was urged to conclude these are the only premiums that apply to hours in excess of
seven in a day, or to days in excess of five in a week, unless an employee works
more than 35 hours weekly and thereby qualifies for overtime pay under article
12.03.
V
I begin my analysis by noting the arguments advanced by the union give rise to
three logically distinct issues. The first question is whether the employer is obliged
to schedule full-time employees each week for a minimum of five days comprised
of seven hours. The second question if whether employees may be scheduled to
work more than seven hours per day or five days per week. The final question is
whether an employee, who works more than seven hours in a day, or more than
five days in a week, is entitled to overtime pay.
Article 12.01 states "hours of work ... shall be 35 hours per week, seven
consecutive hours per day." I do not read this article as guaranteeing that
employees will invariably be scheduled to work a minimum of seven hours a day
for five days a week. As noted in Brown and Beatty in Canadian Labour
Arbitration, at 6:2210, arbitrators have generally viewed a reduction in hours of
work as not violating a contractual provisions delineating the work day. I also note
that reading article 12.02(a) as an absolute guarantee of hours would be at odds
with article 10 permitting the employer to lay off employees and thereby deny
them any work at all.
If article 12.02(a) does not set a minimum, does it impose a maximum? It
prescribes a work week comprised of a total of 35 hours, divided into seven-hour
days. Simple arithmetic dictates such a work week must have five days. Read
literally and in isolation from the rest of the collective agreement, article 12.02(a)
seems to suggest employees may never be scheduled to work more than seven
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hours per day or five days per week, for a total of thirty-five hours weekly. I reject
this reading because it conflicts with article 12.03. That article clearly allows
management to schedule employees to work more than 35 hours weekly, so long as
they are paid the overtime rate for hours in excess of 35. Article 12.03 makes it
clear that the 35 hours per week in article 12.02(a) is no more than a norm. The
wording of article 12.02(a) provides no reason to treat a seven-hour day or a five-
day week differently than the weekly total of 35 hours in this respect. This
reasoning leads me to conclude all of the elements of the work week described in
article 12.02(a) are norms only, not absolute rules admitting of no exceptions, even
though this provision does not contain the word "normal" or any synonym for it.
Like the collective agreements in Bristol Aerospace and Town of Windsor,
the agreement at hand allows employees to be assigned abnormal hours on
occasion. In particular, an employee may be required occasionally to work more
than seven hours per day or more than five days per week. The employer's right to
schedule occasional irregular hours is subject to the caveat noted by Arbitrator
Ashley in Town of Windsor: management must act reasonably, in good faith and
without discrimination. On the other hand, the employer may not regularly
schedule an employee to work hours that do not comply with the norm found in
article 12.02(a).
Under this collective agreement, overtime pay is governed by article 12.03
rather than article 12.02(a),just as overtime pay in Bristol Aerospace and Town of
Windsor was governed by contractual provisions relating to overtime, not those
relating to regular hours of work. According to article 12.03, an employee who
works more than 35 hours weekly is entitled to overtime pay for the hours in
excess of 35. The overtime article omits any mention of the other two norms
expressed or implied by article 12.02(a)—i.e. the seven-hour day and the five-day
week. This omission leads me to conclude there is no entitlement to overtime pay
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unless an employee works more than 35 hours in a week. My confidence in the
correctness of this interpretation is buttressed by the evidence of negotiation
history. When union officials in 2003 sought to amend article 12.03, by adding an
entitlement to overtime for daily hours in excess of seven, they signalled that the
existing provision did not include such a right.
VI
How do the general rulings set out above apply to the facts at hand? The grievor
was not guaranteed seven hours of work on the Friday when he was scheduled for
only five. As he was paid for the hours actually worked, he is not entitled to any
additional payment for that day. The grievor was required to work more than seven
hours daily only on occasion and not on a regular basis. His manager, Bob
Schreader, testified about the operational reasons for scheduling nine hours of
work on the Thursday in question. The union did not contend the employer acted in
a manner that was unreasonable, arbitrary or discriminatory when scheduling this
work. Bearing these factors in mind, I conclude the nine-hour day did not
contravene the collective agreement. As the grievor did not work more than 35
hours during the week in question, he is not entitled to overtime pay The
grievance is dismissed.
Richard M. Brown
Ottawa, Ontario
February 20, 2012
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