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Home My WebLink About1983-0593.Murphy.84-09-28593/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ,-- Between: OPSEU (Daniel M. Murphy) - and - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: E. E. Palmer, Q.C. T. Kearney L. Turtle Vice Chairman Member Member For the Grievor: R. Anand Laskin, Jack & Harris Barristers & Solicitors For the Employer: J. V. Whibbs Regional Personnel Administrator Ministry of Correctional Services Hearing Date: April 26, 1984 DECISION 2. The present arbitration arises out of a grievance filed by Mr. D. M. Murphy on 10 July 1983 alleging he should be paid certain sums of money as a result of an alleged violation of Art. 10.2 of the collective agreement in effect between the parties. This matter was not settled to the satisfaction of the parties and so the present arbitration was necessitated, a hearing in _. relation to which was held in Toronto, Ontario, on 26 April 1984. At that time the parties agreed the Board was properly composed and had jurisdiction to deal with this matter. Initially, it might be noted that the facts in this case h- were not in dispute. Indeed, a written statement of facts was provided to the Board which reads [see Exhibit III]: 1. Mr. D. Murphy is employed as a Correctional Officer 2, at Millbrook Correctional Centre, Millbrook, Ontario. 2. Correctional Officeis work a rotaring shift schedule which includes rhree main shifts: # 1 shift - 0700 hrs. fo 1515 hrs. # 2 shifr - 1500 hrs. fo 2315 hrs. t # 3 shift - 2300 hrs. to 0715 hrs. In addition, the shift schedule includes rhe following auxilliary shifts: # 6 - 0600 hrs. fo 1415 hrs. # 8 - 0800 hrs. fo 1615 hrs. # 4 - 1600 hrs. fo 0015 hrs. 3. Mr. Murphy is covered by rhe current Collective Agreement between the Ontario Public Service Employees Union and the Crown in the Right of Otitario (January 1982 to December 31, 1983). 4. The shift schedule for June 1983 which was properly posted, in accordance with Article 10, provided that Mr. Murphy work the # 3 shift June 25, 1983 (2300 hrs. to 0715 hrs. June 26/83) and the # 3 shift June 26/83 (2300 hrs. to 0715 hrs. June 27/83). 5. At the end of Mr. D. Murphy's regular shift for June 25/83, he was assigned to work overtime to replace another staff member who was absent on sick leave. 6. Mr. Murphy worked overtime from 0700 hrs. June 26/83 to 1500 hrs. June 26/83 and received payment in accordance with Article 13, i.e. 8 hrs. at one and one half times his basic hourly rate. It was on the-basis of the foregoing, then, that the parties presented their argument in this matter. However, it is useful to set out the collective agreement provision in issue. This reads [see Exhibit II]: 10.2 Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however, that if an employee is required to work before twelve (12) hours have elapsed he shall be paid time and one-half (l-3) for those hours that fall within the twelve (12) hour period. On the basis of the foregcing, counsel for the Union urged that the grievance succeed. The rationale for this was made in two general parts. ~The first related to questions of "pyramiding." On this ground, which was not reallyin dispute, it was urged that the rationale for payments for overtime and for what was termed in this case as "shift differential" were different. Consequently, it was argued that one could,not consider that there was any double payment for the same matter. To this end, a number of cases were cited: Re Texaco, 10 L.A.C. (2dJ 221 (Shime, 1975), esp. at p. 222; Re Borden Chemical, 3 L.A.C. (2d) 383 (Weatherill, 1973), esp. at p. 385; and Re - City of Brampton, 25 L.A.C. (2d) 165 (Weatherill, 1980). As noted earlier, however, this argument did not really appear to be disputed by the Crown. 4. As a separate and stronger argument, counsel for the Union put forward the view that, in terms of Article 10.2, Mr. Murphy's "previous shift" to the commencement of his next shift ended at the conclusion of the second overtime shift previously worked. Consequently, under the specific language _. herein set out, Mr. Murphy was entitled to the premium payment sought in this grievance. In this regard, counsel for the Union went over previous jurisprudence of the Grievance Settlement Board to show that this position was one which had not been *- dealt with before and, indeed, was one where an obiter, another board had found this position one to which it was "attracted": See Re Morin and the Ministry of the Environment, 4 May 70, Adams, Chairman. In support of the claim by the grievor, as , well, the cases of Re Silverwood Dairies, 20 L.A.C. 406 (Weatherill, - ); and Re Dominion Bridge, 27 L.A.C. (2d) 3 (Adams, 19801, cited. 1969 were In result, then, the Union requested that this grievance be adopted. Counsel for the Crown argued that the real issue in this matter is the meaning of "shift," not only in Article 10.02, but throughout the totality of Article 10. This clause, as put by the Crown, sets out a "blueprint" for the scheduling of "shifts." Thus, the Board was taken through this Bection to show what was contended to be the appropriate meaning of shift, s; that "shift" really means the regular!.y c I 5. scheduled shift, here of eight hours. More succinctly, the Crown takes the view when they schedule a regular eight-hour shift they are not to schedule the next regular eight-hour shift within twelve hours- of the end of the former eight-hour shift; where they breach this obligation the premium here in issue comes into effect. This, they claim, is supported both by the language in question, but also by previous arbitral authority of the Grievance Settlement Board. The first of the latter was the Mddarty and LeClair award, File No. 54 & 56/76 (Beatty, 1977); the second, not provided to this Board, was t~he Cameron award, File No. 124/77 (Adams, 1977); and the third was the Barter award, File No. 5 106/79 (Kruger, 1961). These, it was urged, supported the view they espouse in this case. Therefore, it was urged this train of authority should be followed. To,bolster their case, they stressed the importance of supporting established arbitral c authority in the interests of stability as described in the Bateman award, File NO. 2/77 (Prichard, 1978). Consequently, they request this grievance be dismissed. In the opinion of this Board, however, the argument of the Union is preferable in this matter. In our view, the language of Article 10.02 is clear in this regard. In our view the key to this are the words "within twelve (12) hours of the completion of the employee's previous shift." We accept ,. . ,j 6. the view of the Union that the time of the completion of an employee's previous shift relates to when the actual period of work ended; not some notional point where the scheduled straight-time ended and overtime began. Common usage supports _. 'this as does the use of the word "work" later in this clause. Again, while we accept the general position that previous arbitral authority should be followed unless manifestly wrong, we do not use that this is applicable in the present case. A review of the author5ty cited by the Crown, in our op%.on, discloses that the factual basis of these cases is distinguishable from the present matter. Accordingly, this grievance succeeds. The grievor is entitled to the monetary relief requested. DATED at Brantford, Ontario, this 28th day of September, I 1984. C. Turtl$, Member