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HomeMy WebLinkAbout1978-0034.Buchanan.80-10-29.;.. NO. 34/70 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN ElQLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIBVANCE SETTLENENT BOARD BETWZEN: JOHN D. BUCHANAN - Grievor and THE CROWN IN RIGliT OF ONTARIO, MINISTRY OF CORFECTIO~AL SERI-ICES - fmployer Y BEFORE: ROSS L. Kennedy Vice-Chairman E. O'Kelly Member cr. Beaulieu Member AFPEARANCES FOR THE GRIEVOR: 1, George Richards Grievance Officer, Cntaric Ptihlic Service Employees Ur,isn A??FiA-WCS FOR THE EXPLOV,CR: J. aeneriict ?I-&xan Resources XmaqeX!ent Xinistry of Ccrrectimal ~~ Services Hearing at Toronto @ctober 3th, 1030 .i.,. ANA?.> I -2- his overtime entitlement with respect to work performed October ljth, 1977. At the outset of the Hearing certain facts were agreed to by the parties as follows: "STATEMENT OF FACT In The Matter of Arbitration Between The Ministry of Correctional Services and Mr. J. D. Buchanan as Represented by the Ontario Public Service Employees Union 1. Mr. Buchanan is employed as a Correctional Officer 2 at the Rideau Correctional Centre and has been so employed since September 26, 1966, and his grievance is properly before the Board. 2. On October 15, 1977, Mr. Buchanan was scheduled to work and did work.the afternoon shift from 1500 hours to 2300 hours. v 3. At the conclusion of this shift and on the evening of October 15, 1977, Mr. Buchanan was instructed by his Shift Supervisor to proceed with another correctional officer (Mr. Charette) to the Cormunity Resource Centre in Ottawa and pick up an inmate and escort the inmate back to the Rideau Correctional Centre. 4. Mr. Buchanan and Mr. Charette arrived a$ the Resource Centre at about 2400 hours and left very shortly there- after to escort the inmate back to the Ride+ Correctional Centre and they arrived back about 0100 hoursand signed out and left the Rideau Correctional Centre at 0100 hours on October 16, 1977. 5. At no time either during the trip to the Resource Centre or while returning from the Resource Centre did Mr. B.lchanan drive the institution vehicle. 6. The round trip took some two hours and Mr. Buchanan received travel time pay ione hour) for the trip to the Resource Centre (Article 23) and overtime pay (one hour) (Article 13) for escorting the inmate back to the Rideau Correctional Centre. 7. Mr. Buchanan is c.laiming overtime payin accordance with Article 13 for the time he worked going to the Resource Centre.." -3- In addition to the agreed facts the grievor gave evidence be- fore us dealing substantially with the nature of his duties and responsibilities during the period of time for which he was paid by the employer on a straight time basis. It was his evidence that trips of the nature of the one involving him on October 15th con- stituted a regular and recurring part of his duties during normal working hours, and that in addition he was frequently required to take such trips after completing his normal working hours. On all occasions prior to October lSth, 1977, he had been paid by the employer on the basis of time and one-half for all elapsed time and no distinction had been made between the Correctional Officer who drove the vehicle and the one who was a passenger on the portion of the trip when they were not accompanied by an inmate. On the specific instance with which we are concerned onthis grievance, the grievor was not the driver and he could not recall whether it was he or the other Correctional Officer who had, infact, signed out the vehicle and ths restraints which they took with them for the purpose of picking up the inmate. He was, at the time, in uni- form znd had handcuffs and a billy on his belt. He further stated that prior to departure it would be necessary to check over the vehicle with respect to gas, oil, lights, etc., and that on the occasion of October 15th it had been he who had completed the prior check of the vehicle. Evidence as to the general procedures in circumstances of the - 4 - nature of those being considered by us was given by the grievor and by a Shift Supervisor called on behalf of the employer. When assignments of this nature are required during regular working hours there are generally two drivers available who will normally do the driving. Drivers are not scheduled in the off-hours and, in circumstances where drivers are not scheduled or not available, two Correctional Officers are normally assigned the task. That selection will normally,depend upon the availability of personnel and what other duties must be performed. Where two Correctional Officers are selected; they will generally work out, as between them- . selves which one will do the driving. One man must sign out the motor vehicle and the restraints and he is the one directly respon- sible for them. This man will usually, though not necessarily, be the one who is going to drive. There is no specific rule or pro- I cedure on that point. :' The Collective Agreement language applicabie reads as follows: "ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1%) times the employee's basic:hourly rate. 13.2 In this Article, "overtime" means an authorized.period .of work calculated to the nearest half hour and per- formed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. ARTICLE 23 - TIMF CREDITS WHILE TRAVELLING 23.1 Employees'shall be credit&d with ail time Spent in travelling outside' of working hours when authorized by the Ministry. -5- 23.6 All travelling time shall be paid at the employee's basic hourly rate or where mutually agreed, by com- pensating~~leave. At the outset it was conceded by Mr. Richards that the fac~tual situation before us was identical to that considered in two pre- vious decisions of this Board, namely, C. D. Marcotte, 54/78, a decision of the~Board chaired by Professor George W. Adams, dated April 27th, 1978, and Ii. K. Cowie 99/78, a decision of the same Chairman dated May 3rd, 1979. In each case Professor Adams focused on the nature of the duties and responsibility~ of the employee at , the particular time and, in the Marcotte case concluded that the driver in these circumstances was, at all material times, within an authorized period of work within the language of Article 13 and, therefore, entitled to be paid tine and one-half.for that period. In the Cowie decision the Board reached the conclusion that with respect to the Correctional Officer who was not driving the car he was essentially responsibility free during the time and the time could not, therefore, be considered as work within the meaning of the Collective Agreement. Mr. Richards quite candidly conceded that he recognized the practice of thisB~oard with respect to recognition of its prior decisions and the desirability of con- sistency in cvntract interpretations. He acknowledged that if we were not to follow the Cowie decision, we.would have to be satis- fied on the standard approve,d by Professor Prichard in Re Bateman 2/77,.that the decision was clearly wrong. This he urged us to do -6 - on the basis that the duties and responsibilities of the Correc-. tional Officer who was travelling as the escort, or passenger, had not, in fact, been analysed and considered in either of the ..~ previous decisions. As recognized in the Marcotte case, the Collective Agreement does make the very specific distinction between "working hours" and "time spent travellinq". The question, therefore, is whether the time the grievor spent during the first portion of the trip was time at work within Article 13.2 or travelling time within Article 23. The issue was stated by Professor Ada& in Marcotte at page 8 as followsi "Thus, in cases of the kind before us now the Board must determine whether the travel related activity of the employee is, having regard to all the circumstances, a continuing aspect of the employee's job duties and thus, amounting to an authorized period of work in addition 'to the regular working period under Article 13.2 or whether it is more appropriately characterised as travel which is essentially free of job duty responsibility and so properly paid for at straight time rates under Article 23." In applying that test in Marcotte in the case of the driver specific reliance was placed by the Board on the activity of driving, the fact that the vehicle was provided for the specific purpose, and the fact that the driver was responsible for.its return in good condition to the employer. It may be noted that reliance was not placed by the Board on whether or not tile driver was in uniform, carrying restraints or subject to the qeneral responsiblities in- herent in his position. Those are, in substance, the characteris- tics which the Union in this grievance argues are material to - -?-. determining this qrievor's status in the course of the trip. In the Cowie decision Professor Adams had before him a state- ment of fact in very similar terms to that which was filed before US. In addition, we did receive some oral testimony, but in our view that evidence did not alter the underlying fact that the qrie- vor was essentially responsibility free in the sense of his normal job duties during the initial period of the trip. There are cer- tain inherent duties and obligations on any employee, and particu- larly one in uniform, that are inherent with the po,sition at all times and we cannot see that these were any different during the travelling period than at any other time. The grievor did testify that he had done the initial checkout of the vehicle, but obviously the actual time requirement for that would have Feen minimal and it would carry with it no continuing responsbility during the trip. !., He was unable to say who had, in fact, signed out the vehicle in the first instance. Reference was made to the past practice on the part of the employer with respect to payment of overtime, but on the authorities such extrinsic evidence is a material aid to 'the interpretation of the contract only in cases of ambiquity and no argument of ambiguity was placed before us. .We are unable to find on the evidence any substantive differ- ence in the fact situation which is before us and that considered in the Cowie.decision. We would specifically agree that effect must be given to the distinction created by t.iie parrirs in this I concur 1 dissent -a- Collective Agreement within Articles 13 and 23 and we are satis- fied that the grievor was, on October 15th, 1977, properly corn- pensated within the provisions of the two Art,icles. In the re- suit, the grievance must be dismissed. DATED at Toronto this 29th day of October, 1980. "E. O'Kelly" E. O'Kelly / "G. Beaulieu" G. Beaulieu I have read the decision in the Buchanan case and the Cowie case that was referred to therein. I must disagree with the result in both. It is clear to me that the intent of article 23 is to pay for n.. time spent in travelling outside of working hours...". In the present fact situation the Grievor worked from 1500 hours on Oct. 15, 1979 until 0100 hours the next morning. The spent travelling was within his working hours and does not come within article 23. The fact that the grievor was not on his regular working hours at this time (they ended at 2300 hours) is immaterial. Article 23 speaks ofeworking hours" only and does not differentiate betweenr@&ular and overtime hours. Therefore in a case such as this where the time spent travelling is contained within working hours, be they regular o# overtime, article 23 does not apply. In a case such.as this we need look no further. The criteria set out in the Marcotte case have no applicability in this case as article 23 has no applicability. These criteria only have applicability to travel time spentnoutside of working hours". I am satisfied that the Cowie decision is clearly wrong in accordance with the standard set out in the Bateman case although this aspect does not seem to be dealt with in the Covie case.(By *this aspect"1 mean the question of the words "outside of working hours") It may well be that the panel in the Cowie case arrived at the decision they did because this was not brought up by the parties. Whether it was or not is not shown in the decision. I believe that this panel has a duty to consider this argument and make its decision even though the panel in the may not have had'the benefit of argument on this aspect. I woald therefore allow the grievance ,and order that the time spent working from2300 hours until 0100 hours be paid in accordance with article 13. /