HomeMy WebLinkAbout1980-0096.Jones.81-11-023efore: ~-
I!! THZ YATTER OF .=.N AR3IT.RATION
Under .The
CROWN EKPLCYEES COLLECTIVE BARGAINING ACT
aefore
THE GRIZVANCE SETTLEMENT BOARD
T. K. Jones Griever
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The C_rown in Right of antario
(Xinistry of Correctional
Services) Zmplcyer
c. a. %Joiliffe, Q.C. Vice Chainan
A. X. XcCLtaig Member
X. N. Perrin Xember
Fcr the Griever: 3 . ?;sj; A, Grievance Officer
Ontario P~klic Service Employees Znio.5
?cr the Smplcver: J. Xibbs, Regional Dersonnel .X?mi~istiator - Ministry of CorrecCional Services
” i
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S2CISION
The issue in this case must be determined primarily
by reference to Articles 7.2 and 3-1 in the collective agree-
ment between hanagement aoard of Cabinet and Ontario Public
Service Employees Vnion. Article 7.2 is as follows:
The normal hours aE r&rk for employees cn these
schedules shall ice farty (40) hours per week and eight (8)
hours pr .d.ay.
The griever, Hr. T. 5. Jones: is an officer at the
!Gilbrook naximum Security Institution inaintained by the
Ministry of Correctional Services. as suc!l, he and other
officers are within those described in Article 7.2.
Of importance also is Articie 3.1:
?here shall te two (2) consecutive 2ays off e.ich shall
be r&en-e? to as scheduled ,days off, except that days off lay
'be non42cnsecutive i2 agreed upon 'b3eec~ the mployee ard the
ministry.
For reasons which will appear, mention has been made
in the course of t.he hearing of this case to .J.rticle 35.1, which
1s as :ollows :
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It is agreed that all miillstries may enter into local
and ministry enplcyee relations negotiations su& that tihey are
appropriate as not being excluded 'by the provisicns of Ihe
Crown Zmpioyees Coliective 3argaL-ur.g .\ct. Such negotiations
shall not be subject to the mediation ard arbitration prccedures
under the acct. orovided however, that n0t.hi.q shall preclltie a
grievance all&g a violation of the Collective .Agreement, as
provided in the said Act.
Yr. Jones' grievance, presented on January 15, 1980,
was as follows:
The rotating roster (auxilim shifts; as assigned in
>w. A. SW'S memo of Jan 7/80 are a :hoiaticn of .&ticle 7.2
of the coliective agreement arr? the minute of urderstaiing
made.;anuary 25th. 19'76 b&ween '?nanagement" ard Local ?A1 SPSEO.
The issue is more clearly defined in the settiement
sought by the grievor:
Termination of auxi;iary shifts or eight hours overtime
payment for each pericd .nhich the schtiule necessitates an emplcyee
wrk six eight hour pericds (48 hoursi prior to receiving ?r~)
consecutive days off.
In short, the substance of the employee's claim is
that overtime should be paid after five consecutive shifts.
This is an issue which has previously been explored in silch
cases as 3arnfield 57/75, 3ateman 2177 and more recently
:ierr 362,'30, in which the facts varied so t:oat the results
varied.
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The parties here agreed cn a statement ,of facts,
Exhibit 3, which must be guoted in fui?:
1.
2.
3.
4.
5.
6.
7.
a.
3.
?a-. T. Jones is employed with the Ytiistry of Correcticnal
Services at .Xillbrook Correctional Centre in the .wsiticn
of General ixrty Gfficer (Correctional Officer 2) and has
been employed in this position since Jtiy 27, 1970.
General Iuty ,Cfficers work rotating shifts to prov+de for
the correctzcnal control, welfare and security of xmates
24 hours pr day, 7 days par week.
Prior to 1972, General LUty Cfficers wrked 40 tours per
week, five consecutive days of kork followed by 2 consec-
utive days off. Days off did not rotate.
In 1972, a Lccal ,tiute of Werstandw aiterad the methcd
of rotation to include rotating days off. The shift schedule
included gericds of six consecutive days of work- Exhibit C.
In 1976, the Lccal Minute of Chierxantiq was qxtated.
DE metk$ af shift rotation is 2esc,C--bed in a iccal ?lir.ute
of LMerstandtig dated January 26, 1976 - Shibit 1.
The Local hute of .tierstar&ng was ii? accordance wi%h the
mute of Wderstandirr betwen the .Ministry of Correcticnal
Services and +he ulicn dated Wvember 8, 1973 - Exhibit 2.
General Cuty Cfficer complement at Yillbmok Correctional
Cent-e increased fmm 76 to 90 in Karch. 1978.
'Ibe Fresident of &al 311 O.I.S.E.E., tillbrook Correcticnal
Centre was advised in a letter dated June 22, i978, that the
L'tinute of LMerstanding ilas outdated and 'c".e item ;r;uld
%e placed on the agenda for the next Lccai hployee Mations
Ccmmittee meeting - Echibit 3.
At a kcai Employee 3elations Ccmittee !4eting Jute 27, 1978,
*he staff side was advised Maat !Ninute cf 'Q-&arstanding zf
January 26, 1976, was "no lcnger in effect as a restit of
ompiement increases and pmgrarrme changes. It wai agreed to rewrite the Local Yinute of rtierstanding !Arough future
meeuqs. Another La2a.l tiute of Lt&rstsndi.~g ?as r.ot
been evolwd to date.
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General tuty Cfficer complement at XiU~ook Correctional
Gntre increased from 90 to 3i ti Api1 i, 1979.
li. staf: here pstsd to "aLxilliar1 shifts" or SuppiementaFj
shifts" effective June 10, 1979.
12. Vr. T. Jones received tie atcached resmnse to his grievance
at the second stage - %&it 4.
13. lYe grievance was proprly ~ccessad through the grievance
prccedure and the 3ca.rd has ti+e authority to decide the case
on the merits. '
The griever was represented at the hearing by Mr. R.
Xabi, a grievance officer with t,he O.?.S.E.ti. but chose to
explain mos: of the case himself. In view of the fact that
there had been an agreed Statemeat of Pacts and that a number
of Exhibits 'were filed on consent, the matter may be decided
almost entirely on the documentary evidence, although the
employer called as a witness Mr. ;.A. Rundle, Superintendent
of the Institution at Miilbrook for the past four years, who
described the history of some 35 the Exhibits and the facts
estabiished therain.
To avoid confusion, in an effort to be consistent
with the ?.umbers yJ.sed in the Statement of r'acts, Exhibit 3,
we have renumbered most of the Exhibits.
As set out In paragraph : of rhe Statement cf Facts,
Cenerai %ty Officers like Mr. Jones in the cericd >ricr to 1972 I
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.worked 40 hours a week in five consecutive days of work,
foliswed by two consecutive days off, and the days off did
7.0t rctate.
The 1972 Local Minute of Understanding provided for.
rotating days off, and the schedule included periods of six
consecutive working days. Tha: minute, Exhibit C, dated
December 14, 1972. was stated to be made pursuant to a Treasury
Eoard directive of 1967 and an understanding between Employees
Relations Committees and the Yinistry made in June, 1972. It
said there were 47 positions normally to be filled at the
institution I that there were to be three shifts in each 21 hours,
that they would rotate over a lo-week period and that the
regul~ar days off assigned to each position would advance one
day every twc-week period.
The Ylnute, however, contained an "escape clause."
It conciuded by stating: "This !di;?ute of Cnderstanding is in
ai=- --A-Ct only as long as the Institutisnls program, complement,
establishment, and position ~assignments maintain their present
form. tiotwithstanding the afcrementioned, this Yinute of
Understanding shall remain in force for one year from the date
of signing, and Gill be automatically renewed fcr a period of
one year annually unless one cf the Farties gives notice sne
mcnth in advance ,of each year's ending, that an amendment 1s
required." The ?linute was executed by .Yanagement and the
hion and was also ratified by the Zeputy Ylnister of that
C&J.
In 1975 another Minute of Cnderstanding was
negotiated and concluded localiy, 2xhibit 1, dated January 26,
1976. This Yinute referred to 52 positions normally, three
shifts rotating over a five-week period, shift changes to
occur after days off: it provided also that regular days off
would advance one day every week. The concluding paragraph
contained the same "escape clause" as that quoted from t:ne
1372 Yinute:
The 1976 Local Yinute was made pu:suant to a llinute
of Understanding between the Ministry 'and the Union dated in
November, i973, Exhibit 2. That d0cumen.t provided for tS,e
creation of Zmplayee 3elations Committees at the local level
to negotiate and settle various matters of local concern,
subject of course to the excljusisn of certain specified topics
governed by legisiaticn or by the Civil Ser.?i.ce Commission or
having a service-wide impact. Acco:dihg to Y?. Xundie, the
Commitree established at YillSrcok met about once a mont:? with
representatives attending from bot.. h the Union and Yanagement.
it has also *been explained that as the nu;nber of
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inmates at Yilibrook increased it became necessary to add
more Duty Officers. ktUal?y. some of the inmates have had
to be housed ,outside the walls, which required a larger
staff. In Yarch,~1978, the complement was increased from
76 to 90. Three months iater, fianagement informed the
president of the local union that the 1976 Minute of Znder-
Standing was "out-dated" and the matter would be placed on
the agenda for revision at the next Employee Relations
Committee meeting. This was duly discussed on June 27, 1978,
when the Committee agreed that~a new Ninute should be negotiated
at future meetings. However, at the time.of hearing this case,
no new Yinute had been concluded.
In the meantime, the complement of officers at
Xillbrook was increased from 90 to 97 in April, 1979. Effective
June 10, 1979, the new staff were scheduled to work "auxiiiary
shifts" or "supplementary shifts." This of course vas slightiy
more than a year after Management had given notice that the
1976 !cr!ute of Understanding would have to be terminated.
Mr. Jones' submission is that since no Minute was
in effect after termination, the scheduiing arrangements at
Yillbrook should revert to the position as it existed prior
to the first Xinute of Undersranding in 13i2. 3 his case, this
wculd :mean that ihe wcuid srcrk five consecuti.:e days and t:hen get
two days off without rotation.~ The employer's response is
that in the absence of a locally-negotiated !4inute of i'nder-
standing it ,is entirely for Flanagement to determine, as part
of its reccgnized statutory perogatrves, how all shifts are
scheduled, provided that schedulin g conforms to the require-
ments of Articles 7 and 9 in the applicable coliective agreemerIt.
The essence of the complaint is that W. Jones,. like
other officers, is frequently required to work six consecutive
days before getting two or more consecutive days off, and that
for so doing he is not deemed 5y Yanagement to qualify for cver-
time in respect of the sixth consecati,?e day.
For example, in Cxhibit 4, which is the schedule
for the month of July, xai, Hr. Jones is shown jiorking from
triday, July 3, to Wednesday, July 9;six consecutive days:
from Saturday, Julv 11, to Thursday, July 15, six consecutive
days. The first of the aforementioned pericds is followed by
two consecutive days off, and the second by three consecutive
*ays 3ff. In the following week, ;however, he was scheduied to
work from Xonday, J.~iy 20, to Friday, July 24, five consecutive
days, follcwed by three days off. .4 simiiar gattern can be
d?is:erned in tke schedule for other officers iisted in Exhibit-? ,
the third sheet of ~h.ich 1~s reprodilced on the nex: ?age.
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. . a.
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Superintendent Pundle testified that Nillbrook is
the Maximum Security Provincial Institution, accomodatinq
"problem cases." There is celluiar accomcdation for 224, but
there are no vacancies and Management has had to provide "12
beds outside." it was this growing work load which necessitated.
an increase in the~number of officers. The so-caiied "auxiliary
shifts" were designed to cover the peak periods between 6 a.m.
and 11 p.m.
Mr. Pundie said the system has hot really been changed
except for the addition of auxiliary shifts: the cycle was
jasically the same. He added that schedules are arranged in
biocks of seven days, from Sunday to Saturday inclusive.
If the work week of seven days beqins cn Sunday and
ends on Saturday, it becomes apparent from analysis of Exhibit 4
that employees must often work more than five consecutive days
before getting two (or three1 consecutive days off. On the
other hand, they do not work more than five shifts in any week
between Sunday and Saturday. ?ive (or six) consecutive work
days may and often dc spill over from cne *dor!k-week into the
next. The management's positicn of course is that they work
no more than five shifts in any period between Sunday and
Saturday, so -hat their maximum hours :durinq~the established
,work-week never exceed 40. The only exceptisn would be uhen
. . . . .
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an employee is.called on to work beyond his eight-h~our shift,
in which event he would become entitled to the overtime premium
under Article 13 of the collective agreement:
13.1 lbe eve-rtime rate for the purpses of this Agreement
shall ke ore and one-half (14) times the employee's
basic hourly rate.
13.2 In this Aiticle, .";ove-rtime" means an authorized period
of rrl3rk calculated to the nearest half-hour and w-
formed on a scheduled xxking day in addition to the
regular working pried, or performed on a scheduled
day(s) cff.
13.3.1 Employees iq Schedules 3.7 ard 4.7 &IO .mtiorm
authcrized ymrk in excess of seven and cnequarter
(74) hours or eight (3) hours as applicable shall
‘bs paid at the overtime rate;
It was submitted on behalf of the grievor that an
empioyee's five consecutive shifts should all fali within one
calendar week. The diffic.ulty about this is that the :oliective
agreement says nothing of a "calendar week," and the right to
arrange assignments is one reserved to the employer by Section
17 of The Crown Employees Collective 3argaining Act. In any
event there is some 'doubt about whether a "calendar 'week" begins
on Sunday or on Monday.
It *was also submitted that the original staff could
have been iestord to the :kind of schedule in effect prior to
1972, and that the addi ti.onal employ&s could 5ave filled t:?e
so-called auxiiiary shifts to cover the peak periods.
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For the employer, Mr. !Nhibbs argued that there had
been no violation of either the collective agreement or any
Xinute of tnderstanding. The Union had been duly notified in
June, 1978, cf what amounted to termination of the previous
Yinute and the auxiliary shifts were not introduced until .4pril,
19i9. 'There was nothing in the coilactive agreement or the
legislation to prevent Management from deciding on the most
appropriate arrangement of shifts to be uised at hillbrook. He
referred to the decisions in 3arnfie:d and Bateman, &upRa. The
3oard held unanimously in Kerr that there had been a violation
of Articie 7 in that the scheduies were so arrarqed that employees
necessarily worked at least once in each four-week cycle for more
than five consecutive days ;Jithin one working week, whether the
week commenced on Monday, Tuesday, Wednesday, Thursday, Friday,
Saturday or Sunday. The facts were therefore quite different
from t.nose 2n this case. Here we. find that the stork-week
commences on Sunday and that employees, as may be seen from
Sxhibit 1, are no: required to work more t,han five consecutive
days within the week from Sunday to Saturday inclusive. It is
true t:hat they cften have to wor!c six consecutive days, one or
more in one work-week and five or less in another work week,
and while these may be consecutive and sometimes are consecutive,
there is nothing in the collective agreement or elsewhere to bar
silci4 an arrangement. The net result is that in no work-week
(Sunday to Saturday) are empioyees scheduled to ror:k more than
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40 hours.
Although the grievor and his fellow-workers must
frequently work more than five consecutive days, it is also
true that they receive inore .than two consecutive days off
several times within a cycle. The result necessarily is that
over the extended period of. the cycle they get a number of days
off corresponding to what they would get under a non-rotating
schedule of two days off after each five shifts worked.
For the reasons above stated, we are obiiged to
conclude that the gri evance is not well-founded and must be
dismissed.
DATED at Toronto this 2nd day of ?ioverrber, 1981.
3.3. Jolliffe, O.C. Vice Chai--an
M. X. Perrln, klember
A. X3. ."lcCuaig\ ?!emZer