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Home My WebLink About1984-0340.O'Connell.85-06-06340/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. J. O’Connell) Crievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R. L. Verity, Q.C. Vice-Chairman R. Russell Member W. Shuttleworth Member For the Grievor: M. I. Rotman, Counsel For the Employer: J. F. Benedict Manager, Staff ,Relations Ministry of Correctional Services Hearing May 7, 1985 - 2 - DE-C IS I ON On January 22, 1984, Dennis O'Connell, filed a vaguely worded grievance in which, it was alleged that he was "compelled to work additional hours without overtime payment from 26 Oec 83 onward". The settlement requests "payment" allegedly for overtime work performed during.the period December 26, 1983 to'May 28, 1984. The Grievor is presently employed as a Correctional Officer with the Elgin-Middlesex Detention Centre at London, Ontario. He has accumulated almost 8 years of service with the Ministry. On October 20, 1982, 95 bargaining unit officers at the Elgin-Middlesex Detention Centre entered into a formal Compressed Work Week Agreement pursuant to Articles 35 and 7 of the Collective Agreement. The Compressed Wor,k Week Agreement was a first agreement for Local 108, and was for a term of one year from January-3, 1983 to December 31, 1983, or until writ- ten notice of termination, whichever first occurred. The effect of the Agreement was to vary the normal hours of work for Schedule 4 employees from 40 hours per week, eight hours per day to a rotating shift schedule which contained both eigh - 3 - hour and 12 hour sh bargaining unit emp four groups of fts. Under that Agreement, oyees had a work cycle of 1 ,7 weeks in which all staff worked 680 hours dur i ng the cycle. A fifth group I worked a cycle of 18 weeks and 720 hours. The evidence established that on September 22, 1983, the union membership voted to authorize its leadership to rene- gotiate the Compressed Work Week Agreement and to make several changes including changes in the rotating shjft schedule. Accordingly, the first formal meeting between manage- ment, and the local union membership' took place on November 1.5, 1983. Certain proposals were considered at the meeting, and apparently the most contentious issue appears to have been the placement of females.in one group for scheduling purposes. However, at the meeting it was tentatively proposed that a new agreement would corn,,, into effect as of January 9, 1984 and tha three to four weeks would be necessary prior to the implementa- tion of the new schedule. It was also proposed that no over- time would be allowed for the'initial start-up and' that straight time would be allowed for the adjustment period, be- tween the 1983 Agreement and the proposed 1984 Agreement. It was also proposed that the present 1983 schedule would continue in effect for as long as three months pending final agreement between the Parties. The Union posted the material proposals on two bulletin boards at the Detention Centre on November 15, - 4 - and membership input was requested prior to November 24. The Union Notice stated, in part, as follows: "Implementations of the schedule will take place January 9, 1984 with a one month grace period to solve problems where offi- cers having ~time owing paid back and vice versa." Clearly, many of the proposals discussed at the November I5 meeting found their way into the .renegotiated Agreement. In any event, the material provisions of the 1984 Compressed Work Week Agreement were agreed upon by the-Parties in late November 1983, and the 1984 Agreement was formally exe- cuted on January 5, 1984. Under this renegotiated Agreement, the rotating shift schedule, including both eight and 12 hour shifts was continued. A significant change was that three groups worked a cycle of 29 weeks for a total of 1,160 hours while a fourth group worked a cycle of 6 weeks and 240 hours. The underlying reason for the present Grievance is that the Grievor is fundamentally opposed to the concept of a compressed work week. The G~rievor testified .that he opposed the concept at the union membership meeting on September 22, 1983. However, a majority of the Union Local voted otherwise and instructed the union leadership to renegotiate the Agree- ment. - 5 - .The evidence establishes that January 9, 1984 was selected as the date for the implementation of the new Agree- ment because it coincided with the end of a cycle for many bar- gaining unit employees. Prior to the implementation of the 1984 Compressed Work Week Agreement, certain adjustments had to be made to place all employees on an equal footing as January 9, 1984. These adjustments benefited certain and worked to the disadvantage of other employees. C of emp lear oyees YS the adjustment worked to the disadvantage of the Grievor who had been paid in advance for 24 hours work. Management pre- sented the Grievor with a number of possible options and he three vacation days. made the decision to forfeit In his testimony, the Gr ievor claims that the 1983 Agreement was terminated effective December 25, 1983. The Grievor claims entitlement to overtime payment for two days in 1983, namely December 26 and 27 when he worked 12 hour shifts. In addition, he claims entitlement for each day he worked 12 hour shifts to May 28, 1984. The s that date was that the Grievor received the 1984 n 1984, when gnificance of Compressed Work Week Agreement duly signed by both the Local and Provin- cial Presidents of OPSEU. Previously on January 16, 1984, he had received the same Agreement signed only by the Local Presi- dent of OPSEU. *, The thrust of the Union's case was to the effect that Local Union Officers had no authority to bind the Parties by . . i - 6 - entering into any Agreement to extend the terms of the 1983 0 Agreement until such time as the 1984 Agreement came into effect. The Employer argued that the Grievance filed had no merit. Specifically, it was intended that the Grievor worked scheduled hours at all relevant times, and that at no relevant time had he been required, nor did he work overtime. The thrust of the Employer's case was that on the instant facts there~ was no violation of the .provisions of the Collective Agreement. Having considered the evidence carefully, the Board is unable to find that the Griever's clajm has merit. On the evidence, we are unable to find th.at the 1983 Compressed Work Week Agreement was terminated, as alleged by the Grievor, prior to its expiration on December 31, 1983. The evidence estab- lishes that the Grievor worked regularly scheduled hours at all relevant times, and in the circumstances there is no entitle- ment to overtime. In our opinion, Loca~l Union Officers had the author- ity to bind the Union by entering into an oral agreement to extend the terms of the 1983 Agreement until the 1984 Agreement became effective on January 9, 1984. Clearly, there is no evi- dence that the Provincial Union objected to the oral agreement , . . 1 - 7 - at any time. Inevitably, adjustments must be made to place all employees on an equal footing prior to the implementation of the 1984 Compressed Work Week Agreement. Accordingly, certain bargaining unit employees received additional benefits during. the changeover, while other employees, such as the Grievor, experienced adjustments to their detriment. The Board is satisfied that by January 9, 1984, all bargining unit employees entered into the new scheduling arrangements on an equal basis. The evidence discloses that the Grievor is not satis- fied with any form of Compressed Work Week Agreement. Here, the Local Union Executive acted quite properly in taking in- structions from a majority of its membership in the negotiation of a revised Compressed Work Week Agreement. In the circum- stances, the Grievor can have no claim against the Employer. The Grievor can only achieve success at some future date in the event that he is able to convince a majority of his fellow bar- gaining unit members that there is merit in reverting to the' traditional 40 hour work week, eight hours per day. In spite of the result, the Board was impressed with the forthright and candid test,imony of the Grievor. However, it can be -said that this Grievance was without merit from the 0 u t s e.t . - a - Accordingly, this Grievance must be dismissed. DATED at Brantford, Ontario, this 6th day of JuEe, A.D., 1985. r /d-=+--H’ I-: R. L. Verity, Q.C. - Vice-Chairman . ~X---i R. Russell ~- Member w. Shuttleworth - Member