Loading...
HomeMy WebLinkAbout1982-0510.Sheppard.86- -IN THE MATTER OF AN aRBITRATION - Under - ,’ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .;. Before ,./,_ THC- GRIEVANCE SETTLEMENT BOARD Between: OPSEU (M. Sheppard) - and - The Crown in Right of Ontario (Ministry.of Correctional SerViCeS) Before: R.J. Roberts J. McManus W.A. Lobraico . . For the Griever: Ian Roland, Esq.. COUllSel Gowling’and Henderson Barristers and Solicitors For the Employer:. .J.‘@. Benedict Man.%Zer Staff Relatiqns and Compensation Ministry of Correctional Services Hearings: March 6, 7, 20, 21,’ 1986 July 15, 18 and 23, 1986 Griever Employer Vice-Chairman Member .Member 2. AWARD In 1985, the Board issued an interim award in the present case in which it was decided, inter e, that it was unnecessary to consolidate a total of 76 grievances which raised the same issue. In our interim award we expressed the view thatthere would be a "considerable likelihood of the parties reaching some accommodation with respect to the remaining grievances after the first grievance is determined on its merits. Otherwise, . ..the .disappointed litigant would be put to the unenviable burden of attempting to.show to the same panel that its previous decision in another of the same group of cases was manifestly wrong." Re Alarcon and Ministry. of Correctional Services, G.S.B. No. 510/82 (Roberts), at p. 10. At the outset of the hearing on the merits, we were advised that the first grievance to be heard would be that of Ms. M. Sheppard, who was a Correctional Officer 2 at the Toronto jail during the period of time embraced in the grievances. Essentially> this grievance claimed that during the ten month period from August 22, 1982, to May 16, 1983, management required the grievor to work overtime for which she was not paid. For reasons which fellow, the grievance is allowed and the matter is remitted to the parties for purposes of determining the amount of overtime compensation owing to the griever: '- The Toront'o jail is a maximum security institution _I 3 adapted to house from 450 to 525 inmates. Its staff is comprised of‘about 250 persons, 130 of whom are Correctional Officers. Some Correctional Officers occupy specialist positions which operate solely on the day shift. Most, however, are Line Officers responsible for the custody and control of inmates. They are. required to rotate through three shifts. ! Thee evidence.indicated that prior,to August 2, 1982, the day shift commenced at 6:45 a.m. and ended at 2~45 p.m.; the afternoon shift commenced dt 2:45 p.m. and ended at 10:4-5 pm. ; and the night shift commenced.at lo:45 p.m. and ended~'.-at 6.~45 a.m. As can be seen, these were eight hour shifts. Overtime was paid if a Correctional Officer were required to stay more than 15 minutes past the end of his shift. This meant that, ilsing the day shift as an example, a Correctional Officer would be paid overtime if he or she were required to stay to 3:Ol p.m. or later.. This seldom happened despite the factthat there were certain procedures which had to be observed at the time of shift changeover. Again referring to the day shift, .thr Correctional Officers reporting for duty at 7:45 a.m. were required to go . to muster where they were briefed regarding the operation of the facility on the previous shift and given their various assiyn- .nents. Upon reporting.to their posts, the Correctional Officers were required-to document the exchange of keys, radios, lights, sectirity equipment and pertinent information with those whom ,. 4. they were relieving. They also were required to document the number of inmates under the control of the officer being relieved. All this information was to be entered upon a document called a Shift Change Certificate, which had to be signed by the relieving officer. In order to save time, the officer who was about to be relieved would complete an extra copy .of this certificate before his, relief arrived at the .post; Upon arrivals,, the relieving officer would sign. it and then the other.officer would turn it in,to the Shift Supervisor prior to leaving the facility. As a result, the officers,being relieved usually were able to make it cut of the facility well'before the hour, i.e., 7:00 a.m. This was a, generous arrangement for the Correctional Officers to have. On a technical application of the Collective Agreement, they would have been required to remain at work for i one-half hour extra per shift. The hours of work for most Correctional Officers were governed by Schedule 4.7 of Article 7.2 of the -Collective Agreement. This called for 40 hours of work per week and 8 hours per day. Because officers at the Toronto jail received a 35 minute meal period which could be vie~wed as time during which they were not working, it was possible to regard them as putting in only about '7% hours of work per 8 hour shift. Despite ~. the requirements of Article 7.2 of the.Coll&tive Agreement, however, it had been the established pra~ctice in the Toronto / jail for several years to schedule officers for 8 hour shifts, 5. inclusive of meal breaks. In December, 1981, something happened to change all of that. Four inmates escaped and remained at large for some .time. Thereafter, an inspection report was issued which placed some of the blame upon a perceived laxity in the shift changeover procedure, .particularly with respect to the count which was recorded in the Shift Changeover Ce,rtificates. Mr. I. Starkie, who was the Superintendent of the Toronto jail at that time, testified that he came to believe that the counts recorded in these certificates were not accurate because the changeover of shifts was occurring far too quickly for the detailed examination to which the changeover slip attested. He decided to tighten up the sQift changeover procedure in order to produce reliable counts of the numbers of inmates in the various ranges. -In order to accomplish this objective without incurring expensive overtime, Superintendent Starkie decided strictly to enforce the hours of work specified in Article 7.2 of the pi: Collective Agreement. On July 27, 1982, he issued a memorandum which provided, in pertinent part, that as of Monday, August 2, 1982, the hours of work in the Correctional~Units would be as follows: A ) Morning Shift - commences at 06.45 hours and ends at 15.15 hours 8) Afternoon.shift -. commences at 14.45 and ends at 23.15 -~hours C) Night shift - commences at 22.45 'hours and ends at 07.15 hours 6. D) Day Shift - commences at 08.45 hours and ends 17.15 hours. ,E) SPECIALISTS: Laundry Officer Assistant Training Officer Assistant Security Officer Mail Officer Housekeeping Officer Grounds and Self- Sufficiency T.A.P. Officer Construction Proj. (Officers(s) A &.D Staff Computer' Officer (Johnstone) Asst. Classification Officer Driver 06.00 - 14.30 hours 06.30 - 15.00 hours 06.30 - .15.00 hours 06.00 - 14.30 hours - variable, as required 08-00 - 16.30 hours 08.00 - 16.30 hours variable, as required will commence and end with sufficient time requirements of thismemorandum 06.45 - 15.15 hours 08.30 - 17.00 hours 08.00 - 16.30 hours In effect, one-half hour was tacked onto what each Correctional Officer had over the years come to regard as his or her normal shift. ; str ,i The extra half hour was intended to accommodate a more ngent procedure which, it was hoped, would provide an accurate count of inmates' at each shift changeover. No longer were the certificates permitted to be filled in beforehand by the shift which was about to be relieved. The relieving officers were ,,,, required physically to count the inmates themselves and enter this number upon the certificate. The certificates then were taken by the officers being relieved to ~the Shift Superintendent and all officers were required to remain on the premises until the aggregate of the counts.onall of the certificates tallied with the number of inmates who were supposdto be in the institution. --:-=-- 7. If the count did not "clear" in this manner, recounts were required to be made until the discrepancy was eliminated. Only then were the officers permitted to go home. Soon, itbecame a relatively common experience for officers to be held back beyond the hour. Officers on the day ~shift would find themselves being required to stay until, e.g., 3:05 or 3:lg p.m. Becau,se they would have been paid overtime if they had been held back in this fashion under the old system, several officers signed the overtime register in order to make a record of their claims. Their supervisors, however, struck out their signatures and directed the Scheduling Clerk not to pay overtime to them because none had been authorized. Need- .~. less to say, the matter became,.controversial. Soon, one of the Correctional Officers,Mr. P. Burns, ,filed a grievance challenging the right of supervision unilaterally to change the hours of work of the Correctional Unit in the way in which it did. On February 20, 1983, another panel of this Board issued an award allowing this grievance. The Board decided that the meal period qualified as a "rest period" under Article 12 -of the Collective Agreement and therefore the Ministry was obligated thereunder to maintain its pre-existing practice of paying for it. Id. at pp. 10-11. - On May 12, 1983, the new Superintendent of the Toronto jail, Mr. C. DeG?andis,iSsued a memorandum reinstating the pre-existing hdurs of work, effective . 8. May 17, 1983. On July 12, 1984, the Divisional Court dismissed an application for review of the m award which had been filed by the Ministry. Because of the action of Mr. DeGrandis, the claim of the grievor in this case is limited to the 10 month period falling between August 2, 1982 and May 16, 1983. The grievor testified that during this period of time, she worked. in three separate capacities within the Correctional Unit: Line Correctional Officer; Mail Officer; and, Computer Officer. In each Casey, she testified, she was required to remain . . at work for a half hour longer than before. The grievor also testified that when she served in these capacities, her meal breaks were not necessarily responsibility-free. When she acted as a Line Offi.cer with responsibility for care and control of inmates, the griever testified, she retained responsibility:for responding to an emergency or "code blue" i during meal breaks. All available Correctional Officers were expected to respond to these alarms. Generally, the qrievor testified, her personal mea~l breaks would be disturbed by a "code blue' about once a month. Because of the 'existence of this~- responsibility for the security of the Institution, it was indicated, the qrievor and her fellow Correctional Officers were discouraged from leaving the Institution during their meal breaks. In the capacity of Mail Officer, the grievor stated.,- 9. she was located in her own office in a house across the street from the jail. The grievor said that when she took her meal break as a Mail Officer she was. not required to do any work; however, on days when she bought her lunch, she ate in the Institution and like the Line Correctional Officers, was then responsible for responding to a "code blue" alarm. As a Computer Officer, the qrievor testified, she was located in the Chief's Office. There, the grievor stated, she was required to stay at her desk during her meal break. This meant that even though she was nominally off duty, she still~had to answer the telephone and respond to inquiries from the Chief, Supervisors; and fellow officers. These conditions persisted, the grievor testified, until the Chief's Office was moved and the duties of the Computer Officer reshuffled. By that time,.the grievorstated, she was back on duty as a Line Officer. At the hearing, the Union made the following. submissions: (1) As in Burns, supra the meal break of the qrievor qualified as a "rest period" under Article 12 of the Collective Agreement, land therefore the Ministry was,obliqated under this provision to maintain its prior practice of paying for it: C&i ) In the alternative, the griever ought to be con- sidered as having been working during her,meal breaks because they were not responsibility-free, 10. and, (3) Finally, and again in the alternative, the Ministry was estopped .under the doctrine of promissory estoppel from unilaterally discontinuing its prior practice of providing Correctional Officers with a paid meal break. These arguments will be dealt with seriatim herein below. (11. THJ~MEAL BREAK As A REST PERIOD UNDW ARTICLE 12 OF THE COLLECTIVE AGRREMEWT In Re OPSEU (Union Grievance) and Ministry of Transportation and Communications (1986), G.S.B. No. 724/83 (Samuels), the Board reversed its prior determination in Burns that a meal break qualified as a “rest period" under Article 12 of the Collect- ive Agreement. The Board did so upon considering evidence of negotiating history which was not placed before the Board in Burns. It was stated, in pertinent part: The history demonstrates clearly that a distinction was made in the negotiations between "rest periods" and the~"mea1 break": And while a party is not boun,d by proposed language which is not ustimately agreed between the two parties, the language used in negotiations does assist in under- standing what is meant by words which do find their way into the collective agreement. In this case, the words "rest periods" are in the collective agreement. During the negotiations, these words were distinguished from the "meal break" and therefore' the words "rest periods" cannot include the "meal break“. Thus, we conc~lude that~ we must reverse the Burns decision. The Board in Burns did not consider the - 11. negotiating history in order to interpret the ambiguous words "rest periods". The earlier decision was based on the evidence before the Board at the time. We now know~that this evidence was incomplete. Having heard the missing evidence, we are in's position to know that Burns was wrong. Article 12.1 preserves the "present practice for rest periods in each shift", but this does not include the practice for "meal breaks". . . . Id. at pp. 9-10.. - The negotiating history convinced the Board that the parties always contemplated .that meal breaks were different from rest ( periods, and hence, could not be embraced by the "rest period" provisions of Article 12. Counsel for the Union submitted~'that nevertheless, this Board should find the reverse to be true. He directed our attention to evidence that in the 1984 round of bargaining the Ministry essentially requested the interest arbitrator to reverse ~the. Burns decision by amending Article 12.1 of the Collective Agreement expressly to exclude meal breaks from the \ ambit of the term "rest period" as used in that provision. When the interest arbitration award was issued, Article 12.1 reappeared unchanged. Counsel submitted that this signified that the interest arbitrator must have intended'meal breaks, ~ to be included within the scope of rest periods. Upon reflection, however, we conclude that it would not be judiciou's to draw such aninference from the apparent decision of the interest arbitrator to ignore the request of 4.&n w;ni et-,, Thn~re minht h&ve been several reasons for this decision. For example, the view might have been taken that it'was more appropriate to leave that particular issue for final determination by the courts, or as ultimately happened, in another proceeding before this Board. Because more than one possible reason could have existed for not responding to the submission of the Ministry, the Board cannot say that just one of these probabilities -- that the. interest arbitrator intended meal breaks to be included within the scope of rest periods -- formed the basis for his action. We conclude that we must agree with Professor ' Samuels. Having heard the same evidence of negotiation history as was before him in the latter case, we, likewise, conclude that meal breaks are not rest periods within the meaning of Article 12.1 of the Collective Agreement. (21 MEAL BREAK As A PERIOD OF WORK BECAUSE NOT ' RESPONSIBILITY-PRSS 'Y The Union took the position that regardless of the applicability of ArticlG 12.1 of.the Collective Agreement, the meal break of then grievor had to be paid because it constituted a periods of work. This was so, it was submitted, because the grievor was not responsibility-free during thins time. As a Line Officer and Mail Officer (while in the .- .%Inntitttion) the grievor retained the responscbility to respond to "code blue" emergencies. Reference also was made to tihe fact that because of security requirements, Line Correctibn 13. Officers were discouraged from leaving the Institution during their meal breaks. The attention of the Board also was directed to the grievor's evidence that as a Computer Officer she was required to eat her lunch at her desk in the.Chief's Office and answer telephones and respond to-inq,uiries from others at the same time. The retention of these responsibilities, it' was submitted, required the meal break to be treated as a period of work for which the grievor ought to have been paid. \ Against these submissions, counsel for the Ministry directed the attention of the Board to certain other evidence relating to management's expectations of officers during.their meal breaks. For example, the memorandum which was issued by Superintendent Starkie on July~ 27, 1982, which set forth the change in hours that occurred during the 10 month period, stated in pertinent part as follows: i I 1 J) K) L) In the event staff must leave the lunch area to return to duty during their meal period, time equal to the~period away from lunch will be repaid in.time when authorized by the Shift Supervisor or Correctional Officer 9, A & D. In the event it'is not possible to repay the time during that shift, the Shift Supervisor may authorize an overtime payment. If staff have purchased a hot institutional meal and must return to duty away from their lunch area, the Shift Supervisor may authorize a replacement meal, without cost, at the staf.f member's request. ._. 1. Staff wishing to leave the Institution during their meal period, may do so upon notifying the Shift Supervisor and signing out and back in. However, if too many staff wish to leave at the same time, reliefs will he delayed 14. The foregoing provisions demonstrated, it was submitted, that the meal breaks of the officers were responsibility-free in that it was possible for officers to leave. the Institution during their meal breaks, and they were to be compensated if they were required to respond to.an emergency while having lunch. As to the grievor's testimony about having to work during her meal~breaks when she was a Computer Officer, there was evidence from the Ministry that this must have been due to a misunderstanding on the part of the grievor'. Mr. I. ~Leithead, the Senior Assistant Superintendent at the Toronto jail during the 10 month period, testified that the Computer Officer was not required to answer telephones or do any .other work during his or her meal break. The officer was not expected to remain in the office, he stated, and could have left at lunch if.he or she so chose. Mr. I. Starkie, the Superintendent of the Toronto ~jai,l just prior to the 10 month period and the author ( of the memorandum which instituted the shift schedule which was in effect during the:.10 month period, gave testimony to the same effect. He stated that if the Computer Officer had come to him and advised him that he or she thought that they were required to answer the telphone, etc. in the Chief's Office during lunch, he wculd have disabused him or her of that impression. This Board has stated that "the test as to whether an employee is working or deemed to be working during the course ci of a meal break is whether, or not responsibilities continue ‘(,. 15 during that period." Re Mitteregger and Ministrv of Correctional Services (19831, G.S.B.No. 481/82 (Verity), at p. 7. At the same time, the Board has recognized that it takes more than a * minimus degree of'responsibility for an employee to be deemed to be working within the meaning of this rule. So, for example, in Re OPSEU (Union Grievance), supra, Professor Samuels indicated that there were c~ircumstances in which an employee would not be deemed to be at work even though he retained responsibility for a Ministry vehicle. Id. at p. 11. Likewise - in tittereqger, s, the Board concluded that refusing an employee permission to leave the institution during a meal break did not translate~into a conclusion that the employee was working. Id..at p. 7. In the present case, it must be concluded that the responsibility which the grievor retained to respond to "code blue" emergencies during her meal breaks comes within this de minimus - .; exception. Such emergencies occurred relatively infrequently. . . ;.,. :. ‘Moreoever, as explained in Superintendent Starkie's memorandum, it remained possible for staff to leave the Institution during their meal breaks, subject only to the possibility of their being rescheduled in order to ensure the availabili.ty of an adequate number'of staff to accommodate the security requirements of the institution. As, to the duties.that the grievor stated that she performed durinq her meal break when she acted as Computer 16. Off,icer, we cannot conclude on the basis of the evidence before us that this was work which was required by management. We refer, in particular, to the evidence of Mr. Leithead, supra, that the Computer Officer was not expected to work during meal break and could choose to leave then office at lunch. The Board found Mr. Leithead to be candid and open in his testimony, and accordingly, we do not have the slightest hesitation in accepting his assertions in this respect. In the result, we must .conclude that the meal breaks of the grievor during the ten-month period were not periods of work for which~~she ought to have been corn-. pensated. (!I MINISTRY ESTOPPEO PROM UNILATRRIkLY DISCONTINUING TRB PRIOR PAID HRAL BReAK The evidence at the hearing left no doubt that the prior practice of the Ministry in granting Correctional Officers a paid meal break had.gone on for several years. This was the gist of the testimony of almost every witness who had been at the Toronto jail for any significant length of time. This also -. was the conclusion which was reached by the Board in Burns, supra, where itwas stated that "for a period:of years...prior to the change . . . in 1982 the Gricvor received 8 hours' pay for a shift that spanned 8 hours and included a meal period/" Id. - at p. 8. At the hearinq, counsel for the Union submitted ." :._. that the Mi,nistry.was estopped 'under the doctrine of promissory 17. practice to the detriment of the grievor at her co-workers. In this regard, counsel referred the Board to Re Domqlas Inc. & United.Glass and Ceramic Workers, Local 203 (19831, 9 L. A.C. (3d) 125 (Kennedy). In that case, the company attempted a similar unilateral change in a well-established practice of paid lunch breaks. The Boards found that the company was estopped from so doing, stating, in pertinent part, as follows: The employer has, for a long period of time granted to.the employees concerned in this arbitration, a paid lunch break of the nature referred.to in art. %.05(b) of the collective agreement. The Company has therefore made a longstanding representation to the union as to~how it proposes to apply ,the collective agreement to the employees who are presently before us. The union is entitled to and- has relied on that practice in determining the issues and areas of discussion that are appropriate in the context ~ of collective bargaining. In this day and age, and considering industrial sector norms, it would be .only reasonable to expect thatif a collective .~ agreement did not provide for a lunch break, such '-. ;izfovision would be included.on the union's shopping . While there may be a sight in a party to bring an estoppel. to an end, that is not an absolutes right and the party which has relied on the repre- sentation must be,given an opportunity to resume his or~iginal position. In the circumstances before us, it would be unreasonable to put an end to the estoppel during the currency of the collective agree- ment and the appropriate time at which the parties could be returned to their original positions would be the next time that they engage in negotiations for a collective agreement. . . . Id. at p. 132. - It was concluded that the company was es~topped from~ putting an end to its prior practice during the currency of the . Collective Agreement. 18. In response, counsel for the Ministry attempted to make a number of distinctions between Domqlas,supra, and the present case. We do not, however, find any of these to .be persuasive. The main point of distinction, it seems,' rests upon the as~sertion that because the parties are governed by one Collective Agreement applicable to all Ministries, the specific hours of work, etc., .applicable to the Toronto jail could never have been brought to the bargaining table. In light of this, it- was submitted, there could not have been any detrimental 'reliance by the employees of the Toronto jail, in the sense of being induced by the prior practice from forbearing to protect their right to a paid meal break during negotiations.' .We find this proposition difficult to accept. While the Collective Agreement is a centralized one, that surely cannot mean that theinterests of employees within individual Ministries _ / are not capable of being'taken into account.; Indeed, the evidence which was placed before the Boards concerning the negotiation of Article 12 of the Collective Agreement indicates just the opposite, that the parties took care'to preserve the divergent practises with respect to rest periods of the departments of the various Ministries. In light oft this, we cannot see any reason why the negotiators would have turned a deaf ear tom any concerns which might have been expressed by,Union representatives from the Toronto jail regarding a proposal of management tg resile from its prior practise of granting paid mea: brkaks. 19. ! 'The doctrine of promissory estopel has formed the basis of many awards issued by this Board, and we can see no reason why it ought not to form the basis of the award in the present case. For several years, the Ministry forbore from insisting upon its strict contractual rights to require employees of the Toronto jail to work for 8 hours per day without a paid meal break. The'employees at the facility were induced to rely upon this practise, and this reliance.was to their'detriment, in the sense ~that they never sought to protect their expectations through language negotiated into the Collective Agreement. The furor which followed the Ministry's decision to enforce its strict contractual rightseloquently demonstratez? that if adequate notice.had been given, the bunion would have attempted to renegotiate the relevant'language of the Collective Agreement. In this respect,...this case appears to be "on all fours" with Domqlas, sunra, and as the Board did in that case we.conclude that the estoppel must'continue until the end of the Collective Agreement which was in force during the ten-month period. CONCLUSION “. : In light of the foregoing, the grievance must be allowed. The matter is remitted to the parties for purposes of determining the amount of overtime compensation owing to the grievor. We wills retain jurisdiction pending this determination. 1986. DATED at London ;, ‘1 I concur/dissent I concur/dissent .. . Ontario, this day of -t 20. J. HcManus, Member W. A. Lobraico .