HomeMy WebLinkAbout1977-0057.Conlogue.77-11-164 4.
.m,
Ontario
57/77
CROWN EMPLOYEES 416/964 6426 Suite 405
GRIEVANCE SETTLEMEN.T 77 Bloor Street !&St
BOARD TORONTO, Ontario
M5S lM2
IN THE MATTER OF ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
Ms. L. Conlogue
And
Workmen's Compensation Board
K. P. Swan Vice-Chairman
Andre Fortier Member
Dan Anderson Member
Mr. G. Jones, National Representative
Workmen's Compensation Board, CUPE
15 Gervais Drive
Don Mills Ontario
For the Employer:
Mr. J. G. Betts, Executive Director
Human Resources Branch
Workmen's Compensation Board
Toronto, Ontario
Hearing:
May 24, 1977
Suite 405
77 Bloor Street West
Toronto, Ontario
2.
The parties were able to provide the Board with an agreed
statement of facts in this matter, which was supplemented by oral evi-
dence. The matter arises from a grievance filed on October 18, 1976
by Mrs. L. Conlogue, R.N., as union steward, on behalf of herself and
a number of other employees. The grievance related to the posting on
October 1, 1976, of the following notice (Exhibit 1, p.9):
HOSPITAL PERSONNEL LEAVING THE CENTRE PREMISES
DURING MEAL BREAK
Normal Work Days
a) Day Shift - Hospital personnel may leave the
Centre premises during regulation lunch break.
b) Evening Shift'- Hospital Personnel to remain
on the Centre premises during their shift.
Cl Night Shift - Hospital Personnel to remain on
the Centre premises during their shift.
Statutory Holiday, Saturday, Sunday
Hospital ,personnel to remain on the Centre premises
during their shift.
Hospital personnel will include Registered Nurses,
Registered Nursing Assitants, Nurses’ Aides and
Orderlies.
The Union's position is that this notice violates Article
7.4 of the Collective Agreement then effective between the parties, and
the Union requests full compensation of wages and benefits for all time
spent "on call" (the Union's expression) from October 1, 1976 and
immediate re-institution of the local practice concerning hours of work,
lunch break and rest periods in effect before that date. The disputed
clause of the agreement is as follows:
Hospital and Rehabilitation Centre
The local practices concerning hours of work, lunch
and rest periods presently in effect for employees
at this location will continue in effect for the
duration of this Agreement subject to'any changes
made~by mutual agreement.
3.
This matter thus involves'the determination
of the "local practices . ..presently in effect" at the
effective date of the collective agreement, and a
determination as to what, if any, alterations had
properly been made to these practices "by mutual agree-
ment". We must therefore look at the history of the
present dispute, which really begins in 1972.
On July 5, 1972 a memorandum from Dr. B.H.G.
Curry, the Director of the Hospital and Rehabilitation
Centre, to Mrs. Patricia Judge (then Miss Tiffney), the
Director of Nurses (her present title), set out the
former's views on the issue of the presence of nursing
staff on the Centre premises during meal breaks (Exhibit 6):
The second aspect of this subject concerned
the duty nurse leaving the Centre for meals.
During the day there is adequate staff to
permit a nui-.se to go home for meals if she
wishes. However, on evening and night shifts
there would not be adequate nursing staff if
one were to leave the property. Therefore,
on evening and night shifts the nur.se would
be required to remain in the Centre at all
times and hence available for any nursing
service required.
There was apparently some discontent about
this policy, which eventually centred around a notice
posted on September 18, 1973 by Mrs. Judge (not in evi-
dence before us). Ultimately, a new directive was issued
by Dr. Curry on November 9, 1973 (Exhibit 4) in the following
terms: \
staff Leavinq the Property During Duty
As discussed, I am prepared to modify my
previous views on Nursing Staff leaving
the property during their shift. This
4.
change is possible as it has been pointed
out that there are very few patients on
the property during certain shifts.
Naturally, patient care is a primary
responsibility, end si-&ld circumstances
change, local decisions will be required
and may modify the instructions below:
1) Normal Work Days:
a) Day Shift - may leave property during
regulation lunch break.
bJ Evening Shift - staff to remain on
property during shift.
Cl Night Shift - staff to remein on
property during shift.
21 Statutory Holiday, Saturday & Sunday:
4 Day Shift - two of staff, 1 graduate
nurse and 1 other, may leave property
during regulation lunch break.
b) Evening Shift - two of staff, 1 qrad-
uate nurse end 1 other, may leave
property during regulation supper
break.
Cl Night Shift - staff to remain on
property during shift.
Item 2) will depend upon the number of patients
actually in the Hospital Section, and the Nurse
inCharge will be responsible as to whom may
leave, to ensure that this benefit is evenly
distributed to staff who may wish it.
The above may apply immediately.
No further written documentation occurs until April
27, 1976, when Mrs. Judge posted a notice setting out a
new shift rotation proposal and asking for comments from nurses.
The document was handwritten, and included the phrases "I won't
move on anything unless I have a concensus (sic)," "You may -
not be able to leave the premises to cover for supper" and
"If I don't hear from anyone I'll assume you have no strong
I i i
5.
objections and I'll start it in June." This new system was
in fact implemented on May 22, 1976. During the summer
following the change of shift rotations, there was apparently
a difference, between employees and supervision, as to the
interpretation of the policy in respect of leaving the
hospital premises during meal breaks. The.discovery by Mrs.
Judge and her assistant that some nurses were leaving Centre
premises during meal breaks other than in accordance with
their understanding of the policy led to the notice of
October 1, 1976 which subsequently produced the present grievance.
From the written evidence available to us,
therefore, it would seem that the employer's stated policy
on whether nursing staff could leave the Centre during meal
breaks could be summarized as follows:
1. From November 9, 1973:
Normal Week Days:
a) Day Shift - Yes
b) -Evening Shift - No
c) Night Shift - No
Statutory Holiday, Saturdays and Sundays:
a) Day Shift - Yes 1 Grad. Nurse & 1 other)
b) Evening Shift - I Yes as above)
c) Night Shift - No
(Subject to the discretion of the charge nurse.)
2. From May 22, 1976:
The above schedule would remain in effect,
subject to the amendment that "You may not be
able to leave the premises to cover for supper,"
the effect of which will be discussed below.
. .
6.
3. From October 1,,1976:
Normal Week Days:
a) Day Shift - Yes
b) Evening Shift - No
c) Night Shift - No
Statutory Holidays, Saturdays and Sundays
a) Day Shift -
b) Evening Shift - l:
c) Night Shift - No
There was, however, some oral evidence which dealt
with these same matters, and we shall set out our findings in
respect of that before turning finally to the effect of the
collective agreement provision (Article 7.4) which bears on this
question.
First, there was some dispute as to the extent to
which the notice of November 9, 1973 was cormnunicated to the
employees. Mrs. Judge states that it was posted on several
occasions; her assistant,'Mrs. McDermott, confirms that it
was posted and says that a copy was in the Nurses' Manual
(a collection of directives available to all nurses) until it
was replaced by the October 1, 1976 notice. Mrs. Conlogue
states that her view of the practice was that employees were
free to leave on meal breaks on weekends, and also on the
evening shift during the week "for special reasons".
Irma Lengyel, a Registered Nursing Assistant, can recall
asking for permission to leave (apparently during an evening
shift) and being told that the policy only applied to Registered
Nurses and that she was free to go. Irmgard Schmidt also felt
free to go home during meal hours.
Both Mrs. Judge and Mrs. McDermott recall specific
7.
requests by employees to leave, but are convinced that permis-
sion was refused. It is not necessary, as we see the evidence,
for us to decide what did or did not happen on a few occasions.
The directive of November 9, 1973 was clear and unambiguous, \
and we are satisfied that its contents were made known to all
members of the staff. Whether they "felt free" to leave or not
appears to us to be inconsequential if there was no acquiescence
by the employer in that feeling, and the very hazy evidence of
acquiescence in specific cases, even if we accepted it totally,
would only demonstrate exceptions to the established policy and
not a totally new policy. We therefore find that, from November
9, 1973 to May 21, 1976, the "local practices" were as set out
in the written directive of the former date.
It now becomes necessary to refer to the collective
agreement itself. The agreement expresses itself to be "made, on
the 14th day of July, 1976", but it also states, in Article 24,
that it "shall take effect beginning October 3, 1975".
The question thus arises as to whether the expression "the
local practices.... presently in effect" refer to those opera-
tive at the former or the latter date. In our view, the
reasonable inference as to the intention of the parties is that
the words refer to July 14, 1976, the day of signing the agreement,
and that the provision in Article 24 is merely a retroactivity
clause extending the effect of the substantive clauses of the
agreement to an earlier date. Retroactivity clauses are, of
course, a form of fiction, and their effect ought not to be to
distort the use of ordinary, easily understood language to make
8.
it mean something it clearly does not. Had the parties
wished to identify a different date for "presently in effect",
they could easily have said "on the effective date of this
agreement" or even"as of October.3, 1975". As they have not,
it appears to us that the plain meaning of the words they
have chosen ought to'stand.
What, therefore, was the practice in effect on July
14, 1976? The Employer's position is that the notice of
October 1, 1976 sets it out; the union's position is that
it was even more liberal than the November 9, 1973 notice.
We have already indicated our decision that the 1973 notice
still stood as of May 21, 1976. We therefore turn to the
effect of the document posted on May 21, 1976. The only words
on that document affecting the policy gn leaving the premises
are "You may not be able to leave the premises to cover for
supper.", What that sentence means will determine whether the
rotation change on May 22 effected any alteration in the policy.
First, the use of the word "supper" would normally
only refer to the evening meal. Second, the document is
clearly tentative in tone, and appears to indicate merely
that there "may" be occasions when the previous practice would
not be possible. The notice of November 9, 1972 clearly con-
templates such a possibility when it says that weekend and
holiday policy "will depend on the number of patients actually
in the Hospital Section, and the Nurse in Charge will be
responsible as to whom may leave". Moreover, the evidence as
to the discussions which took place about the time of the
change-over is confusing, but certainly does not clearly indicate
i i,. i;,i .
9.
that everyone concerned was clearly made aware that the effect
of the'changeover would be to alter the "local practices" to
the positions set out in the October 1, 1976 notice. Indeed,
it is clear that that notice was necessary because employees
had not understood that its provisions were now in effect.
In the meantime, of course, the agreement was signed,
and froze the "local practices" as they were of that date.
It appears to us to be clear that "local practices" in the
context o'f all of Article 7, which deals with hours of work,
could well include whether an individual employee is absolutely
free during a meal period or is subject to some restriction
of movement because of some special interests which must be
protected. There is very little arbitral jurisprudence on
the point, but at least one arbitration award has dealt with
break periods on a basis which we consider consistent with our
approach:
See Re St. Michael's Hospital and International
Union of Operating Engineers (19731, 3 L.A.C. (ZD) 443 (Rayner).
The parties have clearly chosen to adopt "local
practices" rather than to set out specific hours of work to
accommodate the rather unique nature of the nursing function,
and we consider that it is entirely reasonable that they
should have done so. In doing so, however, they must be
considered to have frozen those practices as of the date of
the agreement. Whether or not before that date the practices
could be amended by the employer, after that date "mutual agree-
ment" is necessary, and we accept the Union's argument that,
in the context of a collective agreement, that means agreement
10.
between the two parties to that agreement. Moreover,
whether~or not the employer had the unilateral right-to
alter the practice on May 22, 1976, and whether or not Mrs.
Judge had been authorized to make that alteration on the
employer's behalf, we are of the view that no clear alter-
ation did take place.
As of October 1, 1976, therefore, these employees
were required to remain on the employer's premises at times
when the local practices frozen by the agreement would have
allowed them to leave. To that extent, we allow the grievance,
and make,a declaration that the "leca~ practices" set out in
Article 7.4 include restrictions on, and freedom in respect
of, the right of employees to leave the employer's premises
during meals as set out in the letter of November 9, 1973.
We appreciate that the ‘employer has been able to reduce staff
because of the changed rotation, and that it may be difficult
to maintain those reductions in the face of this award if
the same standards of patient care are to be maintained. We
stress however, that staffing levels and standards of patient
care are totally beyond our jurisdiction, but the Board, like
the parties, is bound to the words of the collective agreement
which the parties have negotiated. Clearly, the answer to
the problem which this award will cause is that the parties
must negotiate alterations to the local practices which will
ensure patient care while protecting, or compensating, the
rights of individual employees under the agreement.
. ii
11.
We turn finally to the matter of.relief in the
form of damages. The original grievance asks for "on call"
pay for the time spent while improperly required to be on
the premises. We can see no justification for this in the
collective agreement, which does not mention "on call" pay
except in a particularly laconic note on the bottom of the
Treatment Salary Scale (which apparently includes the present
employees). Moreover, we are not satisfied that "on call"
describes the position of nurses who remain on the premises
during meals. It strikes us that the parties have negotiated
for a package of nursing services, including rotating shifts,
varying duties and some requirement simply to be around.
The employer has altered that list slightly, in such a way
as to offend against the agreement. We do not, however, see
any scope in the agreement for determining that some liquidated
sum automatically follows from that alteration. According to
the evidence, departures from the premises on weekends and
holidays were always subject to a number of factors,, including
the fact that only one nurse and one assistant could be away
at one time, based on the overriding discretion of the charge
nurse, the requirements of patient care and safety, and the
employee's need and desire to leave. What any one employee has
lost by the memorandum of October 1, 1976 is clearly a matter
of some uncertainty, and we have not been provided with any
evidence upon which we can calculate it. In our view, a full time
employee on a standard rotation may be entitled to some modest
amount as unliquidated damages for the employer's
12.
breach of the collective agreement, if the loss can be
demonstrated to fit within the usual rules respecting the
recovery of damages, which the Board has set out, for
example, in me Noble 6/75 and Re Taynen 9/76. We therefore
I remit the matter of damages to the parties for calculation
by agreement if possible, retaining jurisdiction over the
quantum of damages only in case agreement is not reached.
Dated at Toronto this 16th day of November 1977.
K. P. Swan Vice-Chairman
(I concur)
Andre Fortier Member
(I concur)
Dan Anderson Member