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HomeMy WebLinkAbout1976-0071.Union.76-10-23CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOAR0 416/965/1410 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Public Service Employees Union And The Ministry of the Attorney General Before: D. M. Beatty Chairman Mrs. Mary Gibb Member S. R. Hennessy Member For the Grievor: For the Employer: (Grievor) c- ", (Employer) George Richards - Ontario Public Service Employees Union 0. M. Mitchell - Director, Personnel Management, Ministry of the Attorney Genera 1 Hearing: Board Room, 77 Bloor St. W., Toronto, Ontario, September Zlst, 1976 1 ‘)- f> I -2- The dispute between the parties which~gives rise to the present grievance, concerns the right of certain persons, who are employed in the Ministry of The Attorney General as Sheriff's Officers, to claim the overtime premium that is provided by Article 10.3 of the Collective Agreement. That article stipulates: The Employer she13 make every reasonable effort to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however, that if an employee is required to work before ~twelve (12) hours have elapsed he shall be paid time and one-half-(1%) for those hours that fall 'within the twelve (12) hour period. In support of their claim the employees asserted and the employer agreed that during the period from January '28, 1976, when the Collective Agreement was deemed to take effect, up to and in- cluding July 11, 1976, they reported for work pursuant to the following schedule: First Shift Second Shift Monday-Thursday, 9:00 a.m. - 1:00 p.m. 6:00 p.m. - 10:00 p.m. Friday 9:oo a.m. - I:15 p.m. Moreover, the parties are agreed that at least in part, as a result of the grievance filed by these employees, the employer altered their hours of duty so as t,o conform with the provisions of Article 10.3 with the result that as of that date, their working hours became: First Shift Second Shift Monday-Thursday lo:oo a.m. - 2:00 p.m. 6:'OO p.m. - lo:00 p.m. Friday lo:oo a.m. - 2:15 p.m. Very simply then, by moving the starting time on the first part of the split shift from 9:00 a.m. until 10:00 a.m., the employer was able to -3- ensure that a full twelve hours, rather than eleven, separated the conclusion of the second half of the employee's split shift on any one day from the commencement of the first part on the succeeding day. However, and while it is agreed to alter the shift hours of the Sheriff's Officers as of July 12, 1976 so as to comply with the "spirit" of Article 10.3, the employer resisted the employee's claim for overtime pay for the one hour worked every Monday through Thursday from January 28, 1976 until July 11, 1976 which fell within the 12 hour period prescribed in Article 10.3, on the ground that the employees themselves had reouested and agreed to the shift schedules in operation during that period. Specifically, the employer adverted to and relied on a Memorandum of Understanding entered into on July 23, 1971, between Mr~. 0. M. Mitchell on behalf of the employer and M. Riddell on behalf of the Union, That Agreement (Exhibft 1) provides: In recognition of the fact that the Department of Justice has determined to implement a change in the hours of work per day on an interim basis for a trial period of three (3) .?Dnths to assess expected improved operations in Department's responsibilities as carried out by the Sheriff's Officers in the Judicial District of York and whereas such change re- quires such employees to work eight (Si‘ hours per work day comprised of 2 split shifts of 4 con- secutive hours per shift for four (4) days per week with such days being Monday to Thursday inclusive and whereas such change requires such employees to work four and one quarter f4Jr) hours per work day for one (1) day per week such day being Friday and in recognition that such arrangement affects the ccmputation as to the entitlement and util- ‘.’ _ ,, -4- ization of such entitlement in the matter of overtime, vacation and attendance credits, IT IS AGREED that the accumulation of VacatiOn credits shall accrue on the same basis as if the employee were working seven and one quarter (7%) hours per day five (5) days a week and his entitlement and utilization shall be accordingly applicable when vacation time is granted. It is further AGREED that attendance credits shall ac- crue on the same basis as if such,employee were working seven and one quarter (7%) hours per day 5 days a week, and that absence from employment that warrants utilization of attendance credits in accordance with the Regulations shall entail a debit of one (1) day or seven and one quarter /7&J hours. It is further AGREED that overtime credits shall accrue for such hours of work performed in excess of the said Sleight) hours per day Monday to Thursday~and 4& (four and one quarter) hours per day on Friday. It is further.AGREED that the provisions of this Memorandum of Understanding shall apply only to Sheriff's Officers in the Judicial District of York who are required by the Department to work the hours of work per day specified herein by virtue of the operational requirements. This Memorandum shall have force and effect fxom August 1, 1971 and shall continue in full force and effect until November 1, 1971. For any further period during which the hours of work per day determined by the Department as specified herein remain in effect beyond the said expiration date of November 1, 1971, this Memorandum shall continue automatically thereafter unless either party notifies the other that it desires to amend this Memorandum. On a careful reading of The Memorandum of Understanding we are of the view that there is nothing in its terms on which it could be said that the employees had agreed to work the specific hours described above. Put somewhat differently. there is, on our reading of that Memorandum, simply nothing which either -5- required the employees' consent to the actual hours to be applied to split shifts or mandated the selection of the specific hours that were ultimately determined. To the contrary, on our reading of this Memorandum, the parties had simply agreed that a new work schedule, comprising two split shifts, each of four hours duration, would be implemented on Mondays through Thursdays and one shift of 4L, hours duration would beg scheduled on Fridays. That is, by the terms of their agreement the parties had simply constructed a framework against which the specific hours of work would be struck. Accordingly and in the absence of any indication in the Memorandum to the contrary, it would appear that having agreed to the basic framework against which the working hours-were to be affixed the parties intended that the selection of the actual hours the shifts were to be worked was to remain within management's prerogative. Indeed, from the employer's own evidence, it is clear that as a matter of fact the actual selection of the hours of 9:00 a.m. until 1:00 p.m. and of 6:OO'p.m. until 10:00 p.m. was made on July 29, 1971 by its own Supervisor, Deputy Sheriff and Sheriff. Moreover, and in the absence of any provision in their Memorandum of Understanding to the con- trary, it also follows that regardless of the reasons underlying the selection of those hours, hit was also within the employee's competenc~e and prerogative to establish, at any time, any other hours for those split shifts so long as they met the requirement of being four hours in duration. Thus, and when Article 10.3 of the Collective Agreement came into effect the employer could well have, as it ultimately did on July 12, altered the hours of those shifts so as to ( -6- ensure that twelve hours separated the conclusion of the second part of their split shift from the commencement of the first part of the next day's shift. Very simply, there was no impediment, at least in the Memorandum of July 23, 1971, which would have precluded the employer from unilaterally changing the actual hours of the split shifts. Indeed, that must have been the employer's view as well when it unilaterally altered the times of comnencement and completion of the split shifts on July 12, 1976. In our view the employer's action on that date is conclusive evidence that the employer as well assumed that such decisions were unfettered by the Memorandum of Understanding and were within its complete discretion. However, in failing to make that alteration until July 12, 1976 without paying the overtime rate prescribed by Article 10.3, was, in our view a violation of that provision. While it is, in our view, clear that the employer failed to comply with the provisions of Article 10.3 throughout the period from January 28, 1976 until July 12, 1976, we do not believe that these employees, who initiated their complaint only on May 25, 1976, may properly claim relief throughout that period. To the contrary, and to hold otherwise, would be to improperly penalize the employer for the breach of an agreement of which it was not aware. Thus, where as here, the breach of the agreement is in the nature of a continuing one, boards of arbitration have consistently limited an employee's right to claim damages for the breach of the agreement to the period of time within which it was , - -7- permissible to file his grievance. k?e union GAS CO. of canada ~td. (1972). 2 L.A.C. (2d) 45 (Weatherill). Re Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (Johnston). Re National Auto Radiative Manufacturing E.(1967), 18 L.A.C. 326 (Palmer). Applied to the circumstances of the present grievance it follows from Article 30.2, prescribing the time in which complaints must first be raised, that the extent of the employer's liability for failing to pay the overtime rate provided for in Article 10.3 must be limited to a period of twenty days preceding May 25, 1976. Accordingly, and in light of the definition of 'days' in Article 30.9 we would order the employer to pay the overtime rate set out in Article 10.3 for those hours falling within the 12 hour period described in that provision for the'days from April 26 until July 11, 1976 inclusive. In the result, and to the extent described this grievance is allowed. Dated at Toronto this 21st day of October 1976, &f-Y 4 D. M. Beatty Chairman I cxmc"r Mary Gibb Member S. R. Hennessy Member