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HomeMy WebLinkAbout1985-1064.Fabian et al.87-04-14WJ Duu14s STREET WEST. maONTO. o.w/IRIo. MO In-SWTE 2100 TELEPHONES m/599- 9999 File Nos: 1064/85; 0320/86; 0322186; 0323/86; 0324/86; 0325/86: 0326/86; 0327/86; 0328/86; 0329/86; 0330/86; 0331186. IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Public Service Employees Union (F. Fabian, D. Rutherford, D. Reece, G. Procunier and A. Couture), Grievors, - and - The Crown in Right of Ontario (Ministry of Transportation and Communications), Employer. Before: For the,Grievors: For the Employer: Hearinq: I. C. Springate - Vice-Chairman F. Taylor - Member H. Roberts - Member Peter J. Lukasiewicz Gowling and Henerson Barristers and Solicitors K. B. Cribbie Senior Staff Relations Officer Ministry of Transportation and Communications February 13, 1987 DECISION The proceedings arise out of 12 separate grievances filed by the five grievors, all of whom are employed by the Ministry of Transportation and Communications. The grievances allege that the grievors were improperly ,denied overtime pay. .The parties are in agreement that the claims of two of the grievors, namely Andre Couture and Frank Fabian, can be treated as being representative of the claims of the other grievors. Mr. Couture is a vehicle inspector based in Hamilton. His duties include the inspection of motor vehicles. If he believes a vehicle to be unsafe, .he can recommend to the police that its licence plates be removed. Mr. Couture also .ensures that garages and other facilities comply with the requirements for issuing certificates of mechanical fitness. Mr. Couture started in his current position in 1974. Until 1986 he and his co-workers always worked a 40- hour work week from Monday to Friday. Effective January 1986, however, a new schedule was introduced which required that Mr. Couture work Saturdays on a rotation basis with other employees. Whenever he worked a Saturday, the following Monday was a day off. With the new schedule, in every seven- day period starting on Saturday, Mr. Couture worked five days and had two consecutive days off. Whenever he worked a Saturday, however, that day was the sixth consecutive day that he was required to work. The first Saturday worked by Mr. Couture, and the first time he was required to work six consecutive days, was January 11, 1986. He-put in eight hours, his regular work day.. When filling his time sheet Mr. Couture claimed over- time pay for the day. The time sheet was subsequently reviewed by Mr. D. McLellan, an assistant district compliance inspector. Mr. McLellan was of the view that since January 11, 1986 had been a regularly scheduled work day for Mr. Couture, his claim for overtime pay was improper. In the result, when Mr. McLellan forwarded Mr. Couture's time sheet to payroll, he included a note stating that January'llth should not be paid.for on an overtime basis. Mr. McLellan explained what he had done to Mr. Couture and provided him with a copy of the note to payroll. Mr. Fabian is a highway carrier inspector based in Oakville. He checks and weighs. commercial vehicles and also ensures that their drivers are properly licenced. Prior to 1985, Mr. Fabian and his co-workers generally worked a 36-k hour work week, Monday to Friday. Occasionally they were required to work on a Saturday, in which case they had the following Monday off. At some point in 1985, the employer adopted a schedule which required that Mr. Fabian and his co- workers work approximately one Saturday every three months on a rotation basis. Each time they worked a Saturday, they had the following Monday off. -3- Apparently the first Saturday worked by Mr. Fabian under the new schedule was August 17, 1985. When filling in his time sheet he claimed the 7-k hours he worked that day as overtime. Mr. Fabian testified that he did so because as far as he was concerned he had worked his regular 36% hours in the preceding Monday to Friday. Mr; Fabian was not scheduled to work the following Sunday or Monday. He recorded 7-k hours on his time sheet for the Monday, however, as compensating time off for overtime worked. Mr. Fabian testified that he made this entry because otherwise he would not be able to accountfor 36-g hours 'in the period of Monday, August,l9th to the following Friday. Mr. Fabian's time sheet was reviewed by assistant district compliance officer Bob Gott. Mr. Gott was of the view that Mr. Fabian had improperly claimed over- time rates for the Saturday and that he .should not have claimed any time on the Monday. By this time, Mr. Fabian had left on vacation. Given this fact, Mr. Gott concluded that the appro- priate way to proceed would be to alter the time sheet to reflect how, in his view, Ms. Fabian should have completed it. Mr. Gott proceeded to make the alterations and then forwarded the time sheet to payroll. When Mr. Fabian subse- quently learned what had happened, he was quite upset. In his grievance, Mr. Fabian refer~red to the alteration of his time sheet as a "falsification of employee time sheet". - 4 - The applicable provisions of the collective agreement between the parties provide as follow% ARTICLE 7 - HOURS OF. WORK 7.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one-quarter (36-1/4)hours per week and seven and one-quarter (7-l/4) hours per day. 7.2 SCHEDULE 4 and 4.7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day. ARTICLE 8 - DAYS OFF 8.1 There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon between the employee and the ministry. The union contends that pursuant to Article 7 Of the collective agreement, Mr. Couture and Mr. Fabian were entitled to be paid at overtime rates when they worked on a Saturday. The union acknowledges that there is a line of Grievance Settlement Board awards which does not support this contention, but submits that the facts of this case are funda- mentally different from those in the previous cases. Where a collective agreement actually stipulates the days of the week and/or the hours of the day within which a normal work week must fall, arbitrators have generally held that any work outside of those times must be.paid for at overtime rates. See : Re Ottawa Citizen and Ottawa Newspaper Guild, Local 205 (1978), 17 L.A.C. (2d) 342 (Brown) and Re Interchem Canada Ltd. and Printing Specialties 8 Paper Products Union (19691, 21 L.A.C. 46 (Weatherill). While the collective agreement before us specifies the number of hours in a normal work week, it does not specify the days those hours are to be worked. In the result, a number of Grievance Settlement Board awards have held that the employer is free to set the work week, provided only that each employee receive two consecutive days off within that week. The leading case on point is Barnfield 67/76 (Swan). In that case, the grievor worked a rotating shift which at times resulted in him working six or seven days at a,stretch. The grievor contended that he was entitled to two days' off after every five consecutive work days. The Board rejected this contention; reasoning as follows: As we read articles 7.2 and 8.1, there are three specific requirements set out, beyond which management initiative to schedule work is untrammeled: (1) There must be no more than forty hours scheduled per week. (2) There must be no more than eight hours scheduled per day. (3) There must be two consecutive days off (per week, if we adopt the union's argument for the sake of this analysis). Assuming no consideration is given to the employer's argument of "abnormality" of the - 6- requirements of this job, are all of these considerations met? Clearly no more than eight hours has been scheduled in one day, and the forty hour week and two consecutive days off requirements are mutually dependent once the eight hour day requirement is met. Much of this issue will therefore turn on the meaning of "week". It is interesting that the Concise Oxford Dictionary, 6th Edition gives as its first two definitions of "week" the following: week n. 1. Period of seven days reckoned usu. from and to midnight on Saturday - Sunday....; 2. Period of seven successive days reckoned from any point. * * l For this particular employee's schedule, therefore, all of the conditions are met: ineach calendar week there 'are no more .than forty hours and there are two consecutive days off. Of course,, if we were to insist on applying the calendar week requirement, other employees working on interlocking schedules could not meet all of these con: ditions since the distribution of days off would be different. The-parties, however, have not specified "calendar weeks", but merely "weeks", and there appears to be no reason to prefer one of the definitions above to the other. Therefore, by merely designat- ing a different day of the week as the start- ing day for each of the four employees (or groups of employees) required to staff this rotating schedule, the employer will be seen to have met, in respect of each employee or group, the requirements'of the collective agreement. We note that the collective agreement does not specify the days of the week on which work is to be performed, does not specify that there must be five consecutive working days (but only that days off be consecutive) and does not prohibit the days off in one week from being contiguous with those in the next. Given the absence of such limitations we must - 7 - take the intention of the parties as set out in the collective agreement. As a consequence, we find that the shift schedule on which the grievor has been working since October 13, 1976 is not in breach of the collective agreement. We are supported in this conclusion by the decision of the board of arbitration in Re United Automobile Workers, Local 984, anr Canadian Acme Screw & Gear Ltd. (19631, 14 L.A.C. 84 (Bennett) which, on materially identical contractual language but on slightly different reasoning, reached the same result. The reasoning of the Barnfield award was subse- quently followed in Bateman 2/77 (Prichard), Jones 96/80 (Jolliffe) and Warner 65/82 (Roberts). In Kerr 362/80 (Jolliffe) a scheduling grievance was upheld where the schedule resulted in an employee working in excess of 40 hours per week, regardless of which day the work week was deemed to commence. The award, however, took care to dis- tinguish the facts of thatcase from those in the Barnfield and Bateman awards. In the Jones award, the Board expressly concluded that the collective agreement does not bar an arrangeme~nt whereby an employee is assigned to work six con- secutive days, some in one work week and some in another, reasoning as follows: Here we find that the work-week commences on Sunday and that employees, as may be seen from Exhibit 4, are not required to work more than five consecutive days within the week from Sunday to Saturday inclusive. It is true that they often have to work six consecutive days, one or more in one work-week and five or less in another work week, and while these may be consecutive and sometimes are consecutive, there is nothing in the collective agreement or elsewhere to bar such an arrangement. The net result is that in no work-week (Sunday to Saturday) are employees scheduled to work more than 40 hours. Meaningful reference can also be made to Falconbridge Nickel Mines Ltd. v. Egan and Sudbury Mine, Mill & Smelter Workers' Union, Local 598 83, CLLC para. 14,041 wherein the Ontario Court of Appeal held that employees who worked seven consecu- tive days were not entield to overtime under the Employment Standards Act where the days in question were partly in one work week and partly in another and no overtime was worked within.either of the two work weeks. -8- As noted above, the union contends that the facts of this case are fundamentally different from those in the Grievance Settlement Board awards referred to above. The only major difference the union points to, however, is the fact that the prior cases involved situations where employees worked "round the clock", whereas in the instant case there are some time periods, particularly Sundays, when no employees are on duty. Union counsel contends that this indicates that the scheduling changes requiring employees to work Saturdays were unnecessary and arbitrary. There is nothing in the evidence, however, which indicates that the employer's decision to regularly have employees on duty Saturdays was made in bad faith or in an arbitrary manner. While it is true that the operations in question could have continued to be conducted on basically a five-day a week basis, there is an obvious public policy reason favouring extended hours of operation. The fact that the employer > . 1 -9- decided not to schedule employees to work Sundays.does not detract from the reasonableness of a decision to regularly operate on Saturdays. Given these considerations, the fact that the operations employing Mr. Couture and Mr. Fabian are not continuous does not indicate that the scheduling changes affecting them were made in an arbitrary or bad faith manner and does not make inapplicable the reasoning in Barnfield and the other cases referred to above. The collective agreement stipulates the normal hours of work in a day and in a week and also requires that employees receive two consecutive days off in every work week. Neither Mr. COUtUre nor Mr. Fabian was assigned to work longer than the normal work day or work week, and both received two ' consecutive days off within the relevant work weeks. No breach of the collective agreement has been made out. Before leaving this matter, we would address an issue of some concern to the union, namely Mr. Gott's action in altering Mr. Fabian's time sheet. The union contends that Mr. Gott's action was inappropriate. We agree. The time sheet was under Mr. Fabian's signature and accordingly should not have been altered without his express consent. The alterations resulted in it being a misleading document since it no longer reflected the time worked and payment entitle- ment claimed by Mr. Fabian. Although it did not happen in this case, the alterations could have given rise to a dispute concerning how Mr. Fabian had actually filled in his time sheet. A much better approach was that followed by Mr. McLellan, who forwarded Mr. Couture's original time sheet to payroll accompanied by a note reflecting his view of the matter, with a copy of the note being given to Mr. Couture Without detracting from our comments relating to the alteration of Mr. Fabian's time sheet, we are satis- fied that the union has not established any violation of the collective agreement.' In the result, the grievances are hereby dismissed. DATED at Mississauga, this 14th day of April, 1987. ./ A;;* ,*.,~+yjYi/(’ I. C. Springate - Vice-Chairman