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HomeMy WebLinkAbout1984-0435.Stacey et al.85-09-17IN THE MATTER OF AN ARBITRATION 435184 436184 437184 438184 439184 . THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: OPSEU (C. Stacey, G. Morrissette, D. Morris, C. Craigen and K. Grey) and Grievers The Crown in Right of Ontario (Ministry of Correcticnal Services) Employer P. S. Knopf H. Simon H. Roberts VMkem~~kman “> Member S. Ballantyne Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services Hearing: May 23, 1985, July 29, 1985, July 31, 1985, August I, 1985. , This case ini:olves grievances by correctional officers .ct the Quinte Detention Centre (hereinafter referred to as “the Centre”), who are claiming that their collective agreement was ,violated when changes were introduced into their routine of rest periods in March of 1984. The Board heard evidence and submissions over four days of hearing. However, there was little if any, dispute over the .facts. , In April of 1976, a “compressed work week” system was introduced at the Centre that placed the,officers on a twelve hour shift. This system remained in place until January of 1985. The shifts began at 7:00 a.m. and 7:00 p.m. The shift that is the focus of this grievance is the 7:00 a.m. or ,“day” shift. The “routine” of reporting to work in the morning~for the day’ shift is that the correctional officers would arrive at work between 6:30 and 6:S0 a.m. They would enjoy the comraderie of ,, meeting with the other staff in the staff roomand they would then receive their assignments from their.shift supervisors. Correctional officers would be assigned to specific posts, ie maxj,ym security, or minimum security , or the officeis would be assigned as “rovers” with duties throughout the Centre and with the duty of relieving fellow officers for their rest periods. After receiving their assignments, the officers on the day shift would then report to their individually assigned posts before i:OO a.m. and relieve the night shift staff. Prior to March of 1964, there Kas a certain routine of rest periods throughout the day shift for correctional officers (other than the iemsle staff and staff or. admissions and discharge).‘ The rest period rourine basically gave fi\e re.:t periods to staff through the day shift as follows: 1. Fifteen minutes - shortly after 7:00 a.m. 2. Fifteen minutes around 1D:DD a.m. 3. Thirty minutes - lunch around noontime 4. Fifteen minutes between 2:3D and 3:30 p.m. 5. Thirty minutes - supper around 5:00 p.m. In March of 1984, the superintendent of the Centre, Gordon Meyer made several changes in the institution that were designed to increase efficiency and security that included the decision to eliminate the two morning rest periods. Therefore, supervisory staff w&se instructed to inform the correctional officers t,hat the first morning break which had been around 7:OD a.m. was being eliminated. Jnstead, a single 15 minute break would be ensured for all staff, including the females and those assigned to admission and dischazge. The elimination of one rest period is the action which has spawned this grievance. The Union is claiming that this constitutes a breach of Article 12.1 of the collective agreement which reads: The present practice for rest periods in each shift shall be maintained. In the last ten years, the Centre has grown significantly. The number of staff and the inmate population has increased. The t)-pes of inmates have always been “short term“ stays, but the nature of their offences and their need for maximum security has increased as kell. The evidence presented by the Employer clearly established that the reason \ihy the first morning rest period was eliminated was that the demands of the Centre had grown to such an extent that it was no longer logistjcally possible, given the present staff compliment, to allok staff to rake two morning rest breaks. Further , some duties - s - had to be completed within the first two hours’of the morning shift that could not be accomplished if “rovers” spent those two hours relieving staff rather than fulfillingthesespe,cific requirements. It is important to note that at all times the Union conceded that the Employer had sound security and efficiency reasons for instituting the change. Thus? the only issue was whether the change was a violation of the collective agreement. This brought the question of what constituted the.“present practice for rest periods” to the focus in the case. Because of the fact that the hearing was so protracted, it initially appeared that this’ factual question was very,much in dispute. However, the parties, evidence was remarkably similar. .There was an order excluding witnesses however, all the grievors gave similar and consistent testimony despite ‘the facet that they did not hear each other testify. Further, the supervisory staff who testified did not significantly contradict the . grievors. Just one shift supervisor felt that the position-taken by the grievers was inaccurate, but his testimony wa&made more under- standable by the great assistance offered to the Board by the testimony of Mr. Don Gordon. He was a shift supervisor called by the Employer. Mr. Gordon’s forthright, helpful and articulate testimony explained away what appeared to be an apparent inconsistency between the testimon) of the grievers and the position of management witnesses, h’ith regard to ho% often breaks were received on certain assignments. Thus, we wish to point out that in coming to the conclusions listed be1 we accepted Mr. Gordon’s evid~ence as being the most helpful of al the witnesses. On the basis of that and on the assessment of all Oh, 1 the evidence, the Board has been able’to conclude.the the practice for rest periods throughout all the pass followingwas ibly relevant history. In 1976, the 12 hour shift was introduced to the Centre. In its early days the’rovers were able to offer a rest period to correctional officers assigned to the maximum security Centre right after the shift started at 7:00 a.m. This then evolved to a situation where all the correctional officers on the day shift (except the females and admission and discharge) expected the early break as well as one later in the mid morning. By 1978 the routine was established that those correctional officers~.came to expect two breaks in the morning. This continued through to 1984. The evidence of the employer’s witnesses established that supervisors felt they had the responsibility of trying to ensure that all correctional officers (except for female and,those assigned to admission and discharge) received two morning breaks. The shift L, supervisor made these spec.ific job assignments and set the details of the schedule that was designed to,enable those officers’to get the two breaks. ‘This was clearly not possible when an emergency situation arose requiring everyone’s full service,but this was accepted by all as part of the job. Also, occasions arose when individuals would not receive one or other of the txo breaks or no break at all. For example, the ro\-ers duties xere to relieve others for the breaks. The ro\:ers always got their breaks last. Therefore, if there xere delays along the progress of the schedule, the ToyeT was the most 1ikel.y to lose - 5 - his break. As Mr. Gordon explained, “the rovers permanently got the short end of the stick.” He estimated that they would lose one of their breaks two or three times a week,,or possibly even greater as the work load increased. Officers assigned to the minimum security detail ran a close second in losing one of their breaks. This would amount to’ losing one break in five shifts. In contrast, Mr. Gordon estimated an officer in maximum might lose a break once in every ten shifts. The grievors testified that it-was only a very rare occasion when they would lose one of their morning breaks, even when they~were assigned as rovers. While this initially seemed inconsistent with management’sposition, Mr. Gordon’s testimony dispelled the apparent inconsistency. Mr. Gordon reminded the Board that staff are assigned their duties on a rotating basis. All the grievors acted as rovers equally as often as they were assigned to other posts. ~Therefore, they would only be in the position ‘of rover a few times a month where it might be likely that they would lose a break. But, if on these days, they got their two breaks as often as not? it would still only amount to losing the two breaks on the rare occasion. Therefore, the conclusion that must be reached is simply that the shift supervisors and~management tried to ensure that the correctional officers got the two morning breaks. However, the work load requirement sometimes prevented the staff from getting both breaks. Also, the staff \ih@ \<erc assigned as rovers or to minimum security were more likel! than the others to lose one of their breaks. However, the individual grievers’ particular job assignments put them in the position that they were lucky enough not to experience the loss of breaks with an! degree of fTeqUenCy. - h - > Further, the grievors explained that it was their custom to make up time if they lost a break or if it was shortened because of work load requirements. They would do this by extending one of their other breaks or their meal periods. They testified that some supervisors knew about this and tacitly condoned it. However, none of the witnesses called by management were officially aware of I that practice. Instead, it was explained that management trusted .the officers to police themselves with regard to the length of breaks that were taken. Thus, management did not consider this practice to be acceptable. There is certainly no evidence that anyone has been disciplined for extending their breaks. Nor is there any evidence that management formally knew that -the grievors, or anyone else, were extending their later breaks. The evidence brought out the fact that the Employee Rglations Committee met and discussed the issue of rest periods in 1978. Doug Tocher was,the president of the Union at that time’. He is now a member of management as the Senior Assistant Superintendent. \. He produced ’ the minutes of that meeting which read in part: The staff side outlined their feelings that rest periods should be defined in writing and the procedures detailed. Although it was generally agreed that rest periods were not negotiable at the local level, it was recognized that the working conditions agreement permitted the continuation of the local practice.s, It was generally agreed that the present practice of rest periods for staff authorired at the discretion of the Shift i/c in mid morning and mid afternoon would continue. It k’as recognized by both staff and management that rest periods are largely dependent on work load requirements and that circumstances may occur rihere rest periods for individuals are not possible. - 7 - Mr. Tocher explained that it was his understanding from 1978 to the present that the shift supervisor had the sole discretion of whether to allow rest periods at the Centre. MT. Meyer explained that his ‘decision in 1984 was to take that discretion away from the supervisors and to instruct them to allow only one break in the morning. MT. Meyer explained that the Centre simply cannot operate efficiently with two moining breaks given its present inmate population and staff compliment. Finally, the‘ Union’s case also involved a claim that the correctional officers are entitled to receive bacon and eggs during their early’morning rest peiiods when they are assigned to work on Sundays. The basis of the Union’s claim was that the Centre had ’ consistently provided bacon and eggs to the correctional officers on Sunday mornings. during their first ‘break before March of ,198‘h. This was discontinued when the other changes were implemented. Thus, the Union asked that the practice.be reintroduced in the event that the 12 hour shift is ever reintroduced. ‘\. SUBMISSJONS The Union submitted that the evidence established a clear “practice” with regard to rest periods prior to the changes in the institution. Further, it was argued that managementlsintroduction of changes brought about a unilateral change in the practice for res’~ periods that violated Article 12. The Union submitted that in assessing this issue, the Board should look to the date of the collective agreener; being Januar) 28th, 1981 as the point to assess the “present praclice” and relied on the decision.of this Board in OPSEU (Patrick Burns) _ and Crown in Right of Ontario (Ministr?, of Correctional Services) Board File 565/E?, (Draper). It was submitted that the evidence shouid - 6 - be taken to establish a practice of.two morning rest periods and that the effect of Article 12 is that this practice- should be made to cant inue . Further, counsel submitted that even if the supervisors once did have the discretion to grant or withhold the two breaks, the routine or regularity of granting and ensuring the two breaks which was established by 1982 had cTystaliz,ed any discretion into recognition of an obligation to’ensure breaks to the Staff. Thus, either there was no discretion in 1982.oT that discretion was so uniformly exercised as to create a practice of ensuring two breaks, Acknowledging management’s sound reasons for implementing the changes, the Union argues that the dictates of.,the collective agreement must prevai.1. The Union referred the Board,.to the cases of -United Glass and Ceramic WOTkeTS of North America, Local 203 and Domglass (unreported) Ian Hunter, August 29th, -1983 .and Newfoundland Transportat Company Limited and Brotherhood of Railway etc. Employees 12 LAC (2d) 2 (Harris). The Union Gas seeking a declaration of a violation of the collective agreement, compensation for any,missed rest periods between March of 1984 and January of 1985, a declaration tha>the two break system be returned in the.;event that the 12 hour shift is reinstituted and that the Employer be required in the future to provide bacon and eggs on Sundays when the 12 hour shift is reintroduced. The Employer strenuously opposed the Union’s claims. It was argued that management xas exercising its rights under Section 18 of the Crown Employees Collective Bargaining Act to make necessary changes in the institution. Further, these changes k‘ere justified by Article 16.1 of the collective agreement which charges the Employer with responsibjl in health and safety matters. “The Employer shall continue to make I :ic - i6i reasonable provisions for the safety and health of its employees during the hours of their employment.” Further, the Employer argued rhat the evidence does not disclose any “practice” of two rest periods within the meaning of Article 12. The Employer relied on the decision of Toronto Harbour Commissioners and Canadian bunion of Public Employees 3 LAC (2d) 146 (Hanrohan) which gives an explanation of the concept ’ of “past Practice”. Alternatively, the employer submitted that it has maintained its normal rest periods at all times and that there is therefore~no change in the rest periods. With regard to remedy, the Employer argued that nothing in the collective agreement would obligate the Employer to provide bacon and eggs during rest periods. The Union also referred the Board to the case of the OPSEU (Union grievance) and Crown Right of Ontario (Ministry of Correctional Service Board File 69/84 and 7.0/00. / The Decision The question before the Board’is what was the “present practi for rest periods when the collective agreement~was sfgned and whether that practice.was maintained by the Employer. To determine the “present practice” the Board must ~look to the effective date of the collective agreement. That is July 28th, 1982. The reason for this is ably set out in the decision of Burns, cited above, Article 12 requires not only a rest period in existence on the effective date of the collective agreement to be maintained, but the practice with regard to their observance is to be maintained. As a consequence, whatever rights the Employer may have in respect of normal hours of work and shift schedules, the) are circumscribed by the provisions of Article 1’ C. - 10 - Thus, the “practice” with regard to rest periods that existed in July of 1982 becomes a right which was negotiated into the collective \ agreement as a limitation on management’s general right to determine shift schedules and work assignments. Looking at 1982, the evidence reviewed above indicates that the following was accepted and expected routine for the morning breaks in the institution: 1. Female staff’ got no relief for breaks 2. Staff on Admissions and Discharge sometimes got breaks, but these were not regular. They got no relief for breaks. 3. WhenCorrectional Officers were assigned as “rovers” they regularly got one break, but rarely got a second break. 4. When Correctional Officers were assigned to a minimum security wing they regularly got one break, but often missed a second break. ” However, this was not with the same frequency as the rovers. 5. All’ other assignments virtually ensured that under normal conditions the Correctional Officers would get two morning breaks. ‘1 This pattern was well established by 1982. The supervisors considered it their duty to ensure this pattern was carried out under normal conditions. Everyone understood that the pattern could be disrupted or regular the five s n emergency. But this Board is concerned with the normal routine of the institution. Under such conditions, tuations listed above must be found to constitute the ‘practice” for the res as of 10::. t periods in this institution for the da): shift - 11 - Article 12 of the agreement.obligates. the Employer to maintain that practice for rest periods throughout the life of the collective < agreement. By direct~ing staff shift supervisors to eliminate two breaks for all the staff, the Employer was clearly changing the routine and thus failing to maintain two rest periods for those parts of the shift that would have expected them. Thus, the Employer must be seen to have failed to “maintain” the practice for rest periods as required under the collective agreement. The question then becomes.whether the acknowledged, sound and sensible reasons for instituting the changes amount to a justification or defence under the collective agreement for the violation First, although the evidence did explain that safety aspects had . improved since the change had been put.in place, the.evidence does ‘fall far short of establishing that th.e change itself will make the employees more safe and that the change was the only way of creating that safety. Secondly, the specific provisions of Article 12 must take precedence over the general provisions of Article 18. Finally, the Domglass case and the cases cited therein speak:of:the well accepted principle that the bargain struck. in the collective agreement must be honoured throughout the life of the collective agreement, even if the circumstances change to make the bargain unsuitable or difficult for one party to perform. Therefore, while k’e sympathi:e with the concerns of management at the Centre and agree with the need to do everything pcscible to make the institution more safe and efficient, the Employer’s motivations in this case do not amount to a defence to its obligations under Article 12 of the agreement. This leads to the question of remedy. Here we have difficult with the whol~e’ of the Union’s request. We are prepared to deal with issues of a breach of a collecti agreement and make an appropriate order for a declaration and remedy. However, we have also been asked to deal with a future situation that will arise when the 12 hour shift is reintroduced. This panel was presented with an Order of the Board dated July 26th, 1985 incorporatin minutes of settlement of a grievance before the Board between these very parties covering the Quinte Detentional Centre. The affect of that settlement is that the 12 hour shift is about to be reintroduce This panel was deeply disturbed by the fact thatthe parties.settled one aspect of the length of the shift schedule and left the issue befor this panel outstanding from the settlement. While there may have been good reasons for doing so, this panel cannot imagine how or why ‘this came about. We do not know if any attempts~.were’ made to try to settle this issue in with the other. But, under these circumstances, we do not think it is appropriate to make an OTdeT.fOr the futu~re regarding the scheduling of rest breaks at ‘the institution. This is partly due to the fact that it is best left to negotiations between the parties and also largely due to the evidence that we heard that w,ith the present staff compliment, two breaks cannot be granted in the institution if it is to run properly. Therefore, we feel the only appropriate solution is tore that question back to the parties to discuss the future routine for morr breaks a.hen the 12 hour shift is reinrroduced. It is OUT hope and expectation that they should be able to settle this themselves. - 15 - 0 r der: Therefore, the Board is prepared to,make the following , 1. The Board declares that the Employer has violated the collective agreement by failing to maintain the practice of morning rest periods from March 1984 to January of 1983. _.- _. _ .__ --... 2. The grievors are entitled to compensation for the rest periods they missed. The Board shall remain seized with the issue of compensation should the parties not be able to come to an agreement on the type 0~ amount of compensation. However, the Board also directs the parties to assess the entitlement to compensation on.the basis of the actual shifts worked by the grievors during the.period to which they are entitled to compensation and to assess the actual assignments on those shifts. Then, in determining the quantum of compensation, the Board directs the parties to consider that the following percentages dictate the days of entitlement: 1. When acting as a rover, on admissions OT discharge or in a female wing -- nil percent ’ 2. When assigned to the minimum.security wing 75 percent 3.. When assigned on any other assignment 100 percent 3,. The Board shall remain seized with the issue of what res_t periods are to be granted to Correctional Officers when the 12 ‘hour shift is reintroduced. 4. The claim for bacon and eggs to’ be provided during the Sunday rest periods is denied. 5. In the event that paragraphs 2 and 3 cannot be settled by the parties, the Registrar is directed to reconvene the panel and the parties for an expeditious continuation of the hearing at the request of either party. - 14 - DATED at Toronto this 17th day of September, 985. P. Knopf, Vice-Chairman /$&C.-&L ,.4-y H. Simon, Member'. .'