HomeMy WebLinkAbout1983-0349.Mellon et al.88-03-08349ia3, 390183, 514183, 515183,
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BitWren OPSEU <Bernard Mellon et al) .’
Griever
And
The Crown in Right of Ontario
(Ministry of Correctional Services)
Before
Employer
E.B. Jolliffe, Q.C. Vice-Chairman
S.R. Hennessy Member
G.K. Griffin Member
For the Griever - C.G. Paliare
Counse I
Cowling & Henderson
Barristers & Solicitors
For the Employer
Hearing -_-
M.M. Fleishman
Law Officer
Crown Law Office Civil
February 9, 1987
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SUPPLEMENTARY DECISION
This matter originally came before the Board as the
grievances of Mr. Bernard Mellon and 14 other correctional
officers at the Whitby Jail, a maximum security institution.
Their claim was that they had been denied certain overtime
payments by a unilateral change in practice made in memoranda
issued by or on behalf of the Jail Superintendent in February,
1983, a change which was alleged to be contrary to provisions of
the collective agreement and Article 2 of the agreement between
the Ministry and Local 301 of OPSEU in respect of hours of work.
After a two-day hearing, the Board decided in favour of
the Grievors' claim, summarized as follows on page 20 of the
decision, dated September 18, 1984:
For the reasons given we conclude that the grievances of Mr.
Mellon and others must be upheld. It is hereby declared that
the calculation of overtime payments at the Whitby Jail
ccsrnences when an employee works in excess of 15 minutes
after the hour. It is further required by this decision that
errployees .neg&tively affected by the inplementation of
Exhibit 3 shall be compensated.
If the parties cannot agree on ccnpensation, we retain
jurisdiction to determine the amounts due.
The Board's decision was implemented by the Employer .in
September, 1984, However, judicial review was sought. On May 21,
1986, the Divisional Court dismissed ,with costs the Employer's
application. No reasons were given, but judgment was endorsed as
follows:
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We are all of the view that for the reasons .given by Mr.
Jolliffe the grievance was properly upheld, and therefore the
application is dismissed with costs.
Subsequently, 'the Board was advised by counsel for the
Union that "the parties have attempted to resolve the monetary
aspect of this award but, unfortunately, have not been
successful in doing so." Counsel therefore requested another
hearing ‘in order that the issue of damages can be dealt with."
As agreed, the hearing was held seven months later.
As explained in'the Board's original decision, employees
in the Whitby Jail were among those who work a 40-hour week under
the provisions of the collective agreement, but (as authorized .by
that agreement) a local agreement had been made with the Ministry
providing that the 40-hour work-week should be "averaged" with
12-hour shifts over a 41-week period totalling (with allowances
for vacation time and lieu days) 1640 hours.
For some years the practice had been to allow within
each 12-hour shift a paid meal period of 15 minutes. The result
was that overtime was calculated --- for example --- from 6 p.m.
in the case of a shift ending at 6 p.m., so that if an employee
remained on-duty until 6.16 p.m. he received an overtime payment
for one half-hour. In February, 1983, however, the
Superintendent decreed that there had been an administrative
error and that.overtime in such a case should be calculated from
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15 minutes after the hour, so that payment for one half hour
should not be made unless the employee was required to remain on
duty until 6.31 p.m. or later.
The justification for the change offered later was .that
the 1%minute meal period was supposed to be unpaid and thus each
12-hour shift ended at 15 minutes past the hour, not on the hour.
The Union's response was that the 1%minute period had always
been paid and that the effect of both agreements was to create
12-hour shifts, not shifts of 12 and one quarter hours. It
should be noted that neither agreement specified whether the meal
period was to be paid or unpaid and the issue had not been
discussed between the parties before March or April of 1983 when
employees first became aware that overtime calculations had been
changed.
The merits of the grievances presented by Mr. Mellon and
others were determined by the Board in its original decision,
which was unanimous, and that determinat ion was much'later upheld
by the Divisional Court, also unanimous. It therefore became an
obligation of the Employer to revert without delay to 'its
previous practice and to compensate the Grievors for the overtime
payments of which they had been wrongfully deprived. The parties
having
determ i:
failed to agree on the amount due the Board is asked to
ne that issue.
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It must first be pointed out that all records in respect
of the renumeration of each employee are in the possession of the
Employer, not the Board. The Employer obviously can ascertain
the date on which the change of February, 1983;,was -implemented
in respect of each employee, and also the date on which the
Employer reverted to the former practice. On this point there is
no reason whatever for the parties' failure to agree. All the
facts which are not made known to the Board are in the
Employer's possession and should be fully disclosed to the Union.
In that way, the principal amount due to each employee could be
determined by the parties.
It is surely not beyond the cap'acity of the Employer's
clerk or clerks to review the pay record of each employee and his
quitting-times and thereby calculate the difference between the
overtime he would have received under the former formula and what
he received --- or failed to receive --- under the new formula
decreed by the Jail Superintendent in February, 1983. Counsel
for the Employer told the Board: "If you decide the principle, we
can fix the amount."
Only one witness was called at the supplementary
hearing: the Grievor Bernard Mellon. His testimony was
uncontradicted, and in some respects it was confirmed by the
Employer's counsel, Mr. Fleishman.
r - 6
Mr. Mellon said that pris or to February, 1983, no "shift
briefing" was required: each officer would yield responsibility
to his counterpart on the next shift as quickly and as smoothly
as 'possible and the timing was flexible so that tlie employee
could leave as soon as the changeover had been completed.
However, when grievances were presented against the new overtime
formula, officers were required (on completing a shift) to report
to the shift supervisor in the admitting area and to remain
there, "seated on a long bench," until precisely 15 minutes after
the hour, at which point the supervisor (checking his watch)
would tell them to leave the building. In other words, employees
were being. scheduled to remain on duty for 12 hours and 15
minutes, not 12 hours. Of course, either would include a 15-
minute meal period, which the Employer contended should be an
unpaid meal period, which the Union contended (and the Employer
eventually conceded) had always been treated prior to February,
1983, as a paid meal period.
Mr. Mellon also testified that there were'"odd occasions
--- very rare occasions" --- when officers had been permitted by
their supervisors to leaqe early, but he added: "on those
occasions, supervisors were advised --- so they told me --- they
had been threatened with discipline by the Superintendent."
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According to Mr. Mellon, "bench-sitting ended when the
decision came from the Grievance Settlement Board." As
previously stated, this account was not contradicted.
Mr. Fleishman, Employer's counsel, pointed out that by
strictly applying the old formula (upheld by the Board and the
Divisional Court) overtime did, not become payable until 16.
minutes after the hour and was not payable in the event of
release at precisely 15 minutes after the hour; it had always
been recognized that an officer is obliged to remain on duty
until after his successor takes over for the next shift. Mr.
Fleishman also argued that the time for compliance .did not begin
to run until the Employer's application to the Court was
registered.
On the other hand, Mr. Paliare submitted that, after the
employees grieved, the Employer deliberately scheduled 12 hours
and 15 minutes instead of 12, and this was the very practice the
Board later held to be wrong. For this reason, he argued,
employees held for 15 minutes after their quitting-time were at
the least entitled to payment at straight time. It was improper
to keep them bench-sitting on the erroneous theory that they had
already received a 15-minute meal-period: the Board later found
the paid meal-period to have been standard. practice for many
years. Alternatively, Mr. Paliare suggested, the employees
-should be paid for 15 minutes of overtime by reason of the
improper scheduling.
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Mr. Fleishman's submission in respect of the improper
scheduling was that Article 2 in the local agreement (quoted 'at
page 7 of the Board's original decision) expressly scheduleb
shifts of 12 hours and 15 minutes, not 12 hours, and this had
been the schedule agreed to by the parties before -February, 1983.
On the same page 7, however, the Board pointed out that Article 2
concluded with these words: "This work cycle will be for forty-
one weeks and all staff will work a total of 1640 hours during
t,his cycle." The Board furthers pointed out that "the hours in
the shift cycles above are not consistent with the 1640-hour
total specified in the concluding sentence.'
.Mr.
Fleishman also referred to the following statement
quoting the Superintendent. at page 14 of the Board's original
decision:
Mr. Gill said he met with the Union men in 1982 and "we
agreed that these were mtually acceptable hours but I also
agreed with Field not to change the practice of leaving on
the hour."
The evidence quoted is not consistent with the "bench-
sitting" routine in effect after the grievances were filed and
until the Board's decision was received.
In the opinion of the Board, the "bench-sitting" did not
call for overtime payments unless it exceeded 15 minutes. If
officers were told they could leave at exactly 15 minutes after
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the hour they were not entitled to overtime. They could claim it
only if obliged to remain until 16 minutes after the hour or
later.
Nevertheless, having regard to the Board's conclusion
that the 12-hour shift was standard, and also having regard to
Mr. Gill's assurance in 1982 that he would. not "change the
practice of leaving on the hour," we.conclude that striaght-time
was payable to all those required to remain for 15 minutes after
the hour. The evidence is that this was required from the time
grievances were presented in April, 1983, until the Board's
decision became known in September, 1984. It should not be
difficult for the Employer to,calculate the amount due during
that period.
A very different issue has also been argued by the
parties: whether the Board should award interest on the
principal amount found due. That principal would include both
the straight time referred to above and the overtime payments due
by reason of using the February, 1983, formula instead of the
previous formula.
In support of his submission that interests should be
awarded, Mr. Paliare referred to the judgments of the Divisional
Court in the case of Thibert and others. Shortly after our
hearing Mr. Paliare made the text available to'Mr. Fleishman and
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the Board. A week later Mr. Fleishman wrote the Board as
follows:
I am in receipt of Mr. Paliare's.correspondence of February
12, 1987 and the case enclosed therewith. In response to
that submission, the employer states that an award of
interest by the Board is still discretionary, and in light of
the Board's reasons for decision in OPSEU and the Crown (GSB
724/83) at page 10, that such an award is not appropriate in
this instance.
To this Mr. Paliare replied on March 4 as follows:
. I have received Mr. Fleisbnan's letter of February 18, 1987,
on February 27, 1987. He asserts that an award of interest
would not be appropriate. I have fully reviewed the award,
including page 10, and no conment is made about whether or
not it would be appropriate to award interest in a case such
as the one before you. Rather, Mr. Fleislnnan has placed
before you an award which seems to take issue with the result
in Burns and your own decision, both of which were upheld in i
the-ZZsional Court. Accordingly, the award which Mr.
Fleislnnan filed with you is, in our view, of no assistance to
the issue of compensation which is now before the Board.
A further letter form Mr. Fleishman is dated March 10:
Mr. Paliare's correspondence of March 4th, 1987 was received
in this office on March 9th, 1987. My correspondence of,
February 18th is apparently in need of scme clarification. .I
submitted Professor Samuels' Award for your consideration
because it reached a different conclusion, with the benefit
of additional evidence, than did the Awards in Ehrns and
Mellon. The Professor Samuels Award had the benefn the
negotiatirg history of the collective agreemants before it.
'Ihus, the employer is simply stating that Professor Smels'
Award, while not dealing directly with the issue of interest,
may be of assistance to you in the exercise of your
discretion in that regard. Please note that 'Professor
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Sanmels' Award was follmed in OPSIXJ (ShepoaKd) v. The Crcurl
G.S.B. file no. 510/82 (Roberts and OPSK(Tanq' iel,
ZibriWvsky et al.) and the Crown G.S.B. file 876/84 et ----- al. (P. Knopf).
As acknowledged above by Mr. Fleishman, the Samuels
award did not deal directly with'the issue of interest. It is
that issue, however, which must be determined by this Board at
this point.
It may be, as MK. Fleishman argued at the hearing, that
the award of interest is discretionary. There must, however, be
a rational justification for the exercise of a discretion one way
or the other.
In a number of previous cases the Board has awarded
interest in accordance with the formula devised by the Ontario
Labour Relations Board in Ealwell. The Board's authority to do
so has been upheld by the Divisional Court more than once,
notably in the case cited by MK. Paliare. There also interest
had been awarded in a case involving the Ministry of Correctional
Services and three correctional officers. Mr. Justice Craig dealt
at length with the first issue raised before the Court: "Did the
Board err in-determining that~interest is payable to the Grievers
by the Crown?"
Mr. Justice Craig reviewed a series of'cases decided in
,England and by the Supreme Court of Canada, the Exchequer COUKt,
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the B.C.? Court .of Appeal, the Ontario Court of Appeal, and
Professor Waddams' text, The Law of Damages. At Page 11 he ---
expressly agreed with the following statement by Waddams.
One who fails to pay prcmptly money justly due-to another
does the other a wrong. 'Jhis wrong consists of delay in
payment of what is owed, and is entirely separate from the
question of whether the sum was cwed in the first place.
. . . . . . . .
Interest consists of two elements: compensation for the loss
of use of money and compensation for decline in its value.
Consequently, in times of rapid inflation interest rates tend
to be high-~ The loss to the plaintiff who has been deprived
of his money and the enrichment of the defendant who has
retained it' pending the resolution of the dispute* are
correspondingly increased. With interest rates of twenty per
cent and litigation lasting for four years, the loss to the
plaintiff caused by the delay will actually exceed the
pKi&pal amount in issue. It is not surprising, therefore,
that in recent times (when interest rates and delays in
litigation have exceeded the figures mentioned) there has
been a strong tendency towards permitting the recovery of
interest.
Mr. Justice Craig also referred to several Ontario
statutes, and in respect of Section 19(l) of the Crown Employees
Collective Bargaining Act, he concluded as follows, at page 13:
The Crown is one of the "paKties" referred to in s. 19(l).
neither the agreement noK the Act authorize an award of
interest in express terms, but the Board was authorized to
makes- a "final and binding" decision as to "any differences"
between "the parties". The Board did exercise its discretion
to substitute reinstatement with ccspensation for lost wages: ,
after deductions for incxmne received from other employment,
this loss extended back over several years. For reasons
stated earlier, failure to award interest in 1985 on wages
lost in earlier years means, in effect, that the grievors
would receive only part of the value of the loss for which
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lost in earlier years means , in effect, that the grievors
hould receive only part of the value of the loss for which
ccmpensation was ordered. In my opinion that would amount to
a failure of justice; and such a result would not have been
intended by the legislature. Interest was one of the
"differences" that arose between the Crown and the grievors
during the arbitration. It would be almost imgossible for
the legislature to enumerate all the possible- differences
that might arise in an arbitration or the possible decisions
available to the Board. lhe legislature has said that the
Board's decision is "final and binding”; in my opinion
authority to award interest against the Crown is found in s.
19(l) by necessary implication. Therefore the Board did not
err in deciding this issue.
Mr. Justice Fitzpatrick concurred with Mr. Justice Craig
in respect of interest, but dissented in respect of another very
different issue, one relating to unemployment insurance benefits.
In the case before us, there have been long delays for
which the Grievors+were not responsible. The Board's original
decision was rendered on September 18, ~1984. The Employer
applied for judicial review on February 27, 1985, but the ,
application was not heard and dismissed until April 1, 1986. The
Union applied for a supplementary hearing on June 24 but it was
not until March of the following year that written arguments by
counsel were concluded. Unfortunately, further delay has ensued
during consideration of the matter.
For the reasons stated by the Divisional Court, we must
conclude that compensatipn is payable for the delay in payment of
the principal amount due to the Grievors.
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.It is not in dispute that the Employer reverted to its
former practice on receipt of the Board's original decision on or
about September 30, 1984. The improper calculation of. overtime
thus extended from February 10, 1983 (when Assistant
Superintendent Cronin issued his memorandum, Exhibit 3) to
September 30, 1984, and the overtime payments withheld during
that period form part of the principal amount due.
The Board has also held that it was equally improper to
schedule employees an additional 15 minutes at the end of each
shift and to detain them sitting on a bench for that 15 minutes,
a practice which began when the Mellon grievance was filed April
15, 1983, and ended on orabout September 30, 1984. The Grievors
are entitled to straight time for 15 minutes of each shift worked
during that period, which is the second part of the principal
amount due.
The principal payable did not accrue fully until the end
of the period in September, 1984. In respect of that period, we
are awarding interest at the rate of nine percent per annum
which, however, must be divided by two because the compensation
due was accruing throughout the period. Such interest must be
added to total compensation payable for the period and will
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become the principal payable as of September 30, 1984. Interest
on that total from October 1, 1984, to the date of payment should
be calculated at the rate of nine per cent per annum.
This decision may be summarized as follows:
(1) Overtime not paid as a result of applying the
February,. 1983, formula shall be paid. This constituted Part 1
of the principal payable as compensation.
(2). Interest on Part 1 shall be paid for the period
from February 10, 1983 to September 30, 1984 at the rate of nine
per cent per annum divided by two.
(3) Compensation for 15 minutes in each shift worked
shall be paid for the period from April 15, 1983, to September
30, 1984 at straight time. This constitutes Part 2 of the
principal payable as compensation.
(4) Interest on Past 2 shall be paid for the period
from April 15, 1983., to September 30,.1984, at the rate of nine
per cent per annum divided by two.
Dated at Toront’?f
this 8th
day of March , 1988
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(5) The total of Parts 1 and 2 and the interest thereon
stated in paragraphs 2 and 4 above shall become total
compensation payable to each Grievor as of October 1, 1984, and
interest thereon, shall be payable from October 1, 1984, to the
date of payment at the rate of nine per cent per annum.
It is so ordered.
G. Griffin - Member
EBJ : sol