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HomeMy WebLinkAbout1982-0482.Goedhuis.83-09-07482182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: August 4, 1983 OPSEU (Heike Goedhuis) - And ,- Grievor The,Crown in Right of Ontario (Ministry of Correctional Services) Employer A.M. Kruger I. Thomson P. Camp Vice Chairman Member Member c J. Hayes, Counsel Cavalluzzo, Hayes & Lennon J.F. Benedict Manager, Staff Relations Ministry of Correctional Services -~ 2 - This matter comes before this Board as a result of a grievance launched by Mr. H. Goedhuis. a correctional officer at the Millbrook Correctional Centre against the Employer's refusal to compensate him for involuntary overtime by time off work rather than cash. His grievance dated July 9. 1982 states: Statement of Grievance: "I grieve the ordering of overtime of myself on July 5, 1982." Settlement Required: "When overtime is forced upon an individual, resulting in being held without recourse, causing undue hardship in an already stressful atmosphere, and being that it is the Ministries right to do so, I respectfully submit that the individual being ordered be allowed to oot for PAY or compensating time at time and one - half." The parties were agreed that the Board was properly constituted and had jurisdiction to hear this matter. The Union does not argue that the employer erred in ordering Mr. Goedhuis to work overtime on July 5, 1982. The Employer clearly had the right to do this. Nor does the Union argue that Mr. Goedhuis had the right unilaterally to insist on compensation through time off work rather than cash. The parties are agreed that the relevant section of the contract is Article 13.5 which states: "Where~ there is mutual agreement, employees may receive i. .z -~ 3 - compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave." The Employer also asked the Board to consider the balance of Article 13 and we reproduce the article in full below: ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1,-l/2) 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 performed on a scheduled working period. or performed on a scheduled day(s) off. 13.3.1 Employees in Schedules 3.7 and 4.1 who perform authorized work in excess of seven and one-quarter (7-l/4) hours or eight (8) hours as applicable.. shall be paid at the overtime rate. 13.3.1 Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked. 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7-l/4) hours or eight (81 hours as applicable. shall receive compensating leave of one and one-half (l-1/21 hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. I .L...s-.. * -4- I 13.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of, compensating leave. 13.6 Compensating leave accumulated in a calendar year which is not used before March 31 of the following year. shall be paid at the rate it was earned. Effective March 1. 1978. the March 31 date may be extended by agreement at the local or ministry level. 13.7.1 Employees who are in ClassiEications assigned to Schedule 6 and who are required to work on a day off. shall receive equivalent time off. 13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one-half (l-1/2) times the employee's basic hourly rate, ,to be calculated on the basis of thirty-six and one-quarter (36-l/41 hours per week, for all such work after eight (8) hours in a 24-hour period.' The facts in this case are not in dispute. The Millbrook Correctional Centre is a maximum security institution that houses dangerous offenders. There are about 260 inmates at the Centre. There are about twenty-five correctional officers on each day and afternoon shift. It is necessary to have a full complement of guards on duty to ensure the safety of inmates~ staff and the - 5 .- public. The complement of full-time officers included a provision for covering the duties of officers on vacation. Other absences are handled either by using the limited number of casual (part- time) employees available for duty or by assigning officers to overtime duty. An effort is made to find volunteers for overtime. If that fails, the Employers orders someone to work overtime. selecting if possible from among the officers who will have a scheduled day off immediately following the overtime. The prison in recent years has had to rely on a con- siderable amount of overtime work to man all shifts. In the past two years, on average there are two officers working overtime each day. It is known by all concerned that the Employer's. practice is to refuse time off for overtime and to insist that officers take cash payment for such work at the appropriate rate which is found in Article 13.1 cited earlier. Mr. Goedhuis had been employed at Millbrook for about eleven years at the time of these events. In the past he had worked voluntary overtime. On a.few occasions he had asked for time off rather than cash and had been refused. On July 5. 1982. for the first time in his career he was assigned involuntary overtime, Mr. Goedhuis went to his shift supervisor. Mr. Wayne Ellis, and requested time off rather than cash for this work. Mr. Ellis did not testify but Mr. Goedhuis told the Boa.rd that Mr. Ellis made no response, smiled and carried on his duties. Mr. Goedhuis worked the overtime and made no further representations to the Employer until he filed his 'grievance July 9, 1982. The -6- Employer paid Mr. Goedhuis for his overtime and he accepted this payment. The Union's position before this Board is that Article 13.5 requires the Employer to consider requests for time off carefully and to act in good faith in making its decision on this matter. It is the Union's position that in this case the Employer failed to do so. Mr. Ellis did not take Mr. Goedhuis' request to anyone who was in a position to grant i~t. The request was not even considered and had been dismissed out of hand. The Union argues that while mutual agreement is required under Article 13.5, it does not permit either party automatically to say no to a request to compensate overtime with time off. The Union asked the Board to make a declaration to this effect. The Board heard evidence from Mr. G. Preston the Acting Superintendent at Millbrook. He told the Board that he faced great difficulty in manning the Centre with available staff. He has been assigned only ten casual employees and there is a limit on the number of hours per week these employees can be assigned to duties. He is forced to call on full-time officers for overtime duties frequently even though he is reluctant to do so. He would prefer to have officers who are fresh and therefore more alert than employees who work a sixteen hour tour of duty. However, given his staff, manning requirements, and normal absences from work for a varie,ty of reasons. he has no other option but overtime. -. 7 ,- For this reason, Mr. Preston said. time off in lieu of cash was not possible at Millbrook. If workers took twelve hours off for eight hours of overtime, the Employer would then likely have to find someone else to work twelve hours of overtime. If that person also opted for time off. then eighteen hours of overtime pay would be required for what began as eight hours of overtime. It was most unlikely that the Employer could use casuals or regular staff on regular hours to cover for. someone away on time off for overtime since even now overtime was a daily occurrence at Millbrook. Mr. Preston did say that if he received a request outlining very unusual circumstances he might grant time off in lieu of cash. For example. if someone had already used up his sick leave and vacation entitlement and was about to undergo surgery requiring time off. he would approve a request for time off in lieu of cash. Such an employee would be absent in'any case and the request would not add to the employer's difficulty in staffing the Centre. It is the Employer's position that Article 13.5 does not require anything more than mutual agreement. The Employer contends that either party, for whatever reason or without any reason, is entitled to withhold his consent to time off. Had the parties intended otherwise, then they would have used wording similar to Article 13.4 for correctional officers. These employees are not covered by that clause. Article 13.5 which does cover them is very different from Article 13.4. -a- Furthermore. the Employer argued that even ifs the Board should read into Article 13.5 a requirement that the parties are to consider requests carefully and act reasonably. the Employer has in fact acted in this manner. Mr. Preston's uncontroverted evidence shows that except in unusual circumstances the Employer at Millbrook cannot comply with requests for time off in lieu of pay without creating serious staffing problems and without incurring undue cost. Mr. Goedhuis could not show any special circumstances related to his request and. in the opinion of the Employer, it was reasonable to refuse him. The Board has carefully considered the evidence and argument presented to us. We are dealing with an individual grievance of Mr. Goedhuis and not with a policy grievance. We find that in the circumstances of the matter before us. the Employer did not violate the collective agreement in denying Mr. Goedhuis' request out of hand. Nothing in Article 13.5 requires either party to give any reasons for a refusal to deviate from the normal practice under Article 13.1 in handling overtime compensation. Had the Employer asked Mr. Goedhuis to accept time off in lieu of cash he would have had every right to refuse without any requirement that he consider the matter or justify his refusal. This is different from Re_U_AW_a_?d_O_P_~IU__IS_t!~~eL where the matter involved mutual agreement on the timing of an employee's vacation. There the parties were expected to bargain in good faith over the issue. In the matter before this Board. the parties in Article 13.1 have agreed on the normal way to handle the matter. Article 13.5 permits them to make exceptions by mutual agreement and nothing more than that can be read into this Article. Even if we were to accept the Union's position that both parties must act reasonably. we would deny the grievance. When management at Millbrook must resort to overtime on a daily basis. it is unreasonable to expect many exceptions to the inevitable policy of refusing requests for time off in lieu of cash for overtime. The employees are all aware of the general policy. It is preferable that they know how unlikely it is that exceptions will bs made then that their expectations be falsely raised by a pro forma procedure for requests that are certain to be refused for good reason. For all these reasons. this grievance is denied, We cannot conclude this Award without commenting further on a matter that concerns this Board. It is obvious that resort to overtime on a frequent basis is in no one's interest. The employees are asked to work sixteen hour shifts under very trying circumstances. The Employer pays premium rates and gets less than adequate returns for this money. Where a given employee works overtime frequently. there acs risks to the safety of inmates~ _._ -.- - 10 - staff and the public. This Board cannot understand why, under the conditions described to us, the Ministry does not assign to Millbrook either more regular or more casualstaff. We have no power to make any orders related to this. Nor would we normally comment on such matters. However, in this case we are of the view that we should share with those in authority our findings on an important issue. DATED at Toronto this 7th day of September, 1983. A.M. Kruger I. Thomson Member P. camp Member 2:1200 8 : 1000 8:1400