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HomeMy WebLinkAbout1985-1314.Addison et al.88-12-19SETTLEMENT RkGLEMENT DES GRIEFS 180 D”A’O+?S STREET WEST, S”lTE *,oo, ~*RoNm oNTAt7*.,M5G IZB TEEP”*NErELEPHONE: ,4 16, 326. ,388 180, RUE 0”NO.u OUEST. BUREAU 2100, ~oOR*NTO coNmnlol: MS0 IZB F*CSIMILE/TEELECOP,E : (4 16) 326. ,396 1314/85, 1315/85, 1316/85, 1317/85, 1318/85, 1319/85, 1320/85, 1321/85, 1322/85, 1323/85, 1324/85, 1325/85, 1326/85, 1327/85, 1328/85, 1330/85, 1331/85, 1332/85, 1333/85, 1334/85, 1337/85, 1338/85, 1339/85, 1340/85, 1341/85, 1342/85, 1343/85, 1344/85, 1346/85, 1347/85, 1348/85, 1349/85 IN THE NATTER OF AN ARBITRATION Under THE CROEN EMPLOYEES COLLECTIVE BARGAINING ACT BETNBBN BEFORE: FOR THE GRIEVOR FOR THE EMpLoyER HEARING Grievor Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Addison et al) - and - The Crown in Right of Ontari'o (Ministry of Correctional Services) Employer M. Wright Vice-Chairperson S. Hennessy Member G. Milley Member P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers 8 Solicitors J. Benedict Manager, Staff Relations and Compensatibn Ministry of Correctional Services July 20, 1987 November.18, 19, 25, 26, 1987 ,April 11, 12, 1988 October 5, 6, 1988 DECISION This matter involves 33 Grievors who are Correctional Officers CO-2 at Maplehurst Correctional Centre. The Grievors claim to be entitled to compensation for all time encompassed by their meal periods on the basis of overtime rate of pay, that is to say at the rate of one and one-half (11) times their basic hourly rate. The Grievances are asserted under Art. 13.1 and 13.2 of the Collect- ive Agreement which read as follows: "13.1 The overtime rate for the purposes of this Agree- ment shall be one and one-half (141 times the employee's basic hourly rate. .- 13.2 In this Article, "overtime" means an authorized period bf work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or perform- ed on a scheduled day(s) off," Counsel for both parties agreed to consolidate the 33 Grievances for the purpose of the hearing, that is to say, they agreed that the Grievances would be heard together and the decision in this case would apply to all 33 Grievances. The Correctional Officers at Maplehurst work on 3 shifts as follows: Day Shift 6:45 a.m. - 3:15 p.m. Afternoon Shift 3:00 p.m. - 11:30 p.m. Night Shift 11:OO p.m. - 7:00 a.m. - 2 - Thus, the Day and Afternoon Shifts are 84 hour shifts with a half hour meal period which is an unpaid period. The Night Shift is an 8 hour shift which includes a meal period. that is to say, the meal break is paid for at the regular basic hourly rate. There is no problem as regards the Night Shift. All of the Grievors work, or rather at the time of the filing oft the Grievances worked on either the Day Shift or Afternoon Shift. Only 6 of the Grievors testified. Presumably the evidence was tendered in,that way as being characteristic or representational of the conditions applying to all of the Grievors. We shall not attempt to sunanarize in detail the evidence which was placed before us in 9 days of hearings over a period of 15 months. We shall deal 0 only with the most important aspects of the case. The essence of the Grievors' case is that when the Grievors are on a meal break they are not responsibility-free of the duties of the positions which they hold as Correctional Officers. Various panels of this Board have dealt with the question of what is involved in being responsibility-free or not. Before attempting, therefore, to review the evidence, we believe it will be useful to consider the jurisprudence which has emerged from past decisions in order better to evaluate the importance and the significance of the material placed before us. Again, we shall refer to the decisions which to us appear to be most helpful in determining the underlying basic philosophies which have emerged from the decisions in question. GS8 365/82 - Patrick Burns (Draper) The, Board held that a meal period constitutes a "rest period". Article 12.1 of the Collective Agreement provides that "the present practice for rest periods in each shift shall be maintained". The employer unilaterally altered the regular shift thereby de- priving employees of a paid meal period which had previously been the case. The Board also held that in the circumstances of that case the employees must be taken to be working during their rest periods and were therefore entitled to be compensated. The Board said as follow& ' The meal period at the Toronto Jail is a period of time, specified by the Employer as to length and timing, during which the Grievor is relieved from his assigned post. The scope of the activity in which the Grievor may engage is regulated only to the degree necessary to maintain security which, given the nature of the institution, is a consideration the Employer cannot logically ignore and which the CO's cannot reasonably oppose. It is of interest that the Board in Robertson, 469/82, recognized a difference between a requirement man employee notify the employer before leaving work premises and a requirement that the permission of the employer be obtained before he leaves. The Griever may eat or may not, may leave the institution or may not, may be called back to duty or may not. The existence of these alternatives does not seem to us to be signifi- cant. The evidence establishes that during the meal period. CO's normally eat, normally remain in the institution and normally are not called back to duty. It is to that normal condition that. we must direct our judgement." GSB 481/82 - Mitteregger (Verity1 This case also involved the status of the meal period which was in effect at Millbrook Correctional Centre. The Board stated the situation as follows:- - 4 - I' Simply stated, the test as to whether an employee is working or deemed to be working during the course of a meal break is whether or not responsibilities continue during that period. The issue of continued responsibility during a meal break is a factual consider- ation which must be based on the evidence presented. Here,the actual activity of a Correctional Officer during a meal time is an irrelevant consideration. Also .an irrelevant consideration is whether or not a Correctional Officer is permitted to leave the Institution during a meal break. In the instant Grievance, all of the evidence including that of the Grievor is consistent with the fact that a Correctional Officer at Millbrook has no responsibili- ties during his meal period. On the rare occasion when there is an emergency during a meal break a Correctional Officer is expected to return to work upon request and is subsequently paid accordingly or alternatively given time in lteu thereof. Here, it cannot be said that the Grievor was under the control of management or was con- sidered on dutyduring the meal break." GSB 406/83 - Anwyll (Samuels) This decision allowed a Grievance claiming entitlement to overtime pay or travel pay for an hour spent bye the Grievor in travelling from Sarnia to London as a passenger in a Ministry vehicle outside his regular working hours. The decision reviews the cases up to that time. It refers to GSB Marcotte, 54/78 in which the driver of a vehicle who was a Correctional Officer was held to be entitled to overtime pay when driving home after escorting prisoners out of town. The Board found that the Grievor was still "at work" because driving the vehicle could not be characterized as "essentially a responsibility-free activity". The driver was in charge of a motor vehicle which was the 'property of the employer and the Grievor must be said to have been involved in the perform- ance of part of his employment duties. The Samuels Board contains a useful review of other decisions and, in regard to the Anwyll Grievance, the Board stated:- .,. i - 5 - ' In our view, this jurisprudence leads to the conclusion that, in principle, the issue of whether an employee is entitled to overtime pay or travel pay depends on whether or not the employee is undertaking responsibilities during the course of the journey. And this would accord with the collective agreement. Article 13.2 defines "overtime" as a "period of work". Under Article 23.1, travel time is time spent travelling "when authorized by the ministry". In each particular case, the issue becomes what is the "work" of the employee involved." GSB 370/84 - Alan Clements (Samuels) The Grievance involved the question of whether time spent moving a Ministry vehicle after regular hours is-to be considered as "travel- ling time" or "gver-time". It was held that the Grievor was engaged in "work" since he-was under a "continuing responsibility" as part of the duties of his position. "Until the journey is over, the employee is not released from responsibility to the employer, and is therefore still "at work". "Travel is an inherent part of the Grievor's job." "Whether driving or not, the Grievor is clearly .responsible to the Ministry for the vehicle and its contents". GSB 724/83 - OPSEU Union Grievance (Samuels) This case involved Traffic Patrollers who for a number of years. "worked eight-hour shifts, taking their meal when they could, and they were paid for eight hours". In December 1982, they were assign- ed to work 83 hour shifts, during which they were to take a definite 30-minute meal break and they continued to be paid for eight hours. The Union claimed compensation for the half-hour as overtime. The Board turned its attention to the decision in 365/82 ~Patrick Burns and "reversed" the Burns decision holding that a "meal break" -. i - 6 - is not the same as a "rest period". (Incidentally, the Divisional Court agreed with the reasoning in 724/83 thereby effectively rever- sing the Burns decision to the extent that it dealt with the question of the meal period being a "rest period". The Board then went on to consider whether or not the Traffic Patrollers were responsibility-free during their meal breaks. The Board concluded as follows:- "Conclusion Our analysis thus far leads to the conclusion that the Ministry had the right to introduce an unpaid "meal b-eak" in& the Traffic Patrollers' day. We are left-with a further argument by the Union---that in fact there is no real "meal break", because the Patrollers are not responsibility-free during the period. They have continued to keep the dispatcher informed of their whereabouts, and have continued to consider them- selves on call throughout their shifts. And the dis- patchers relay messages to the Patrollers during their lunch breaks, and on occasion interrupt their lunch and call them out on an emergency. Furthermore, throughout the day,. the Patrollers remain responsible for their Ministry vehicles. This is analogous to the grievor in Anwyll, 406/83, who was found to remain on duty, not on travel time, while driving home after repairing fire alarms. In Anwyll, the Board said (at page 71: Whether driving or not, the grievor is clearly responsible to the Ministry for the vehicle and its contents. Whether driving or not, the grievor bears a certain responsibility to get the vehicle back safely........At a gas station, or a coffee stop, the grievor would have equal responsibility to see that the vehicle and its contents were safe. Surely the Ministry would not want the grievor to relax 'and turn a blind eye "because he wasn't at work any longer, he was responsibility-free". His responsibility would continue until the vehicle, equipment and parts were safely returned. The Patrollers' situation is analogous to the grievor in Anwyll. The job necessarily involves continuing responsibility :nroughout the day. Even if they are i - 7 - required to get off the road for half an hour to eat and relieve the stress of the job, they are not responsibility-free. The traffic and emergencies don't wait while a Patroller eats. The vehicle is always there, and must be taken care of. This is not to say that an employee is necessarily entitled to payment for all hours during which he is responsible for a Ministry vehicle. Clearly, there are circumstances in which it can be said that the employee 'is "responsible" for the vehicle, but even so he is not at work. Consider, for example, an individual who is assigned a government vehicle for three days during which time he must visit several Ontario cities and remain in hotels for two nights. Perhaps, at all times, the employee remains responsible for the government vehicle, because it has been assigned to him for three days. However, the employee may be considered "responsibility- free" during the nights and evening and meal times, in the sense'that he is not on duty. In short, responsibility for the vehicle is not sufficient alone to entitle an employee to pa-ment from the employer. In our case, the Patrollers are not only responsible for their vehicles during the times they eat, but their job necessarily involves continuing responsibility through- out the day to assist with emergencies. In these circumstances, we find that the Patrollers have worked an extra half hour per day since June 14, 1983, and should be compensated for this overtime labor. The grievance is allowed." GSB 510/82 - Sheppard (Roberts) This case involved a claim for overtime pay for the meal break in a correctional institution. The decided cases are reviewed. In the course of its findings, the Board dealt with the question of continuing responsibilities as follows:- ' This Board has stated that "the test as to whether an employee is working or deemed 'to be working during the course of a meal break is whether or not responsi- bilities continue during that period." Re Mitteregger and Ministry of Correctional Services 09831, G.S.B. N 481/82 (Verity), at p. 7. At the same time, the B&d has recognized that it takes more than a de minimus degree of responsibility for an employee to be deemed to be working within the meaning of this rule. So, for example, in Re OPSEU (Union Grievance), supra, Professor ...~~~ _.. ., ..~.~ ~... i - 8 - Samuels indicated that there were circumstances in which an employee would not be deemed to be at work even though he retained responsibility for a Ministry vehicle. Id. at p. 11. Likewise in Mittereg er concluded that refusing +I supra. the Bold an emp oyee permon to leave the institution during a meal break did not translate into a conclusion that the employee was working. at p. 1.” rd. GSB 405/87, 406/87 - Hotchkiss and O'Donnell (Mitchnick) In this recent decision the Board dealt with the same question which confronts us. The Board reviewed previous decisions of this Board. The Board expressed its opinion as follows:- ;- ' The material distinction in the present case is that here the shiftsupervisors are not required to keep manage- ment or a dispatch office informed of their whereabouts at all times. Emergencies do arise, and the shift super- visors may have to be looked for when they do, but the fact of the matter is that whether or not contact is able to be made with the supervisor during his lunch break is purely a matter of chance. Management has expressed the preference, for obvious practical reasons, that the shift supervisors call in when they are going to be away from their vehicles on a break; but in terms of what the "rules" are, it is of paramount significance that the grievors do not in actual practice do this, and do not feel that they are exposing themselves to any discipline by not doing so. On the other hand, when they are available to be contacted, the evidence, including the Omy Activity sheets does not disclose any significant number of occasions when the shift supervisor's lunch is in fact interrupted, and certainly not where the super- visor is not able, after making a phone call, to sit down again and complete a full lunch-break. And to the extent that he cannot, it is clear that there are an ample number of "down" days in which to make up that time. Alternatively, the evidence of the Ministry's senior officials makes it clear that the shift supervisor is free to put in an overtime claim when the lunch-break was rendered impossible by developments on the shift, and the Ministry has undertaken to consider any such claim here." . . - 9 - Obviously, we must look to the evidence in order to determine whether or not it supports the proposition that the. Grievors were "at work" during their meal periods or, alternatively, whether or not they were responsibility-free during their meal periods. The parties before us differ sharply with respect to the factual background which they urge upon us. The evidence in support of the Grievances sought to establish that Correctional Officers are never really off-duty during their meal breaks. On the Day Shift, inmates have their lunch between 11:40 a.m. and 1:00 p.m. Correct- ional Officers arrange to have their lunches either between f lo:30 a.m. and 11:OO a.m. or between 11:00 a.m. and 11:30 a.m. In the Afternoon Shift, inmates have their dinner from 5:00 p.m. to 6:00 p.m. while Correctional Officers take their meal breaks either between 4:00 p.m. to 4:30 p.m. or between 4:30 p.m. to 5:00 p.m. Correctional Officers have several choices as to where they will take their meal breaks. One option is to eat in the staff dining room. The second option is to eat in a muster room which is adjacent to the control room. A third option is to leave the institution -- signing in and out .-- and to eat in one of several fast food restaurants which are apparently located within a short walking distance of the institution. Dining facilities in the institution are arranged so that there is a kitchen which has the inmates' dining room on one side of the kitchen and the staff dining room on the other side. Correctional i - 10 - Officers eating in the staff dining room have a view of the kitchen and, to a lesser extent, of the inmates' dining room. The kitchen is operated by a caterer but some of the inmates perform duties in the kitchen. We heard evidence from Correctional Officers that notwithstanding the fact that they were on their lunch breaks, they had, on various occasions, been called upon to remove an inmate from the kitchen area because he was behaving in an abusive manner. Correctional Officers carry their radios with them in the institution and they have to respond, during their meal breaks, to radio calls for a variety df reasons such as -- to place an inmate with force into the Special NEeds Unit as a result of the inmate becoming violent with another Correctional Officer, to quell violent behaviour on the part of a drug-crazed inmate and numerous other reasons which arise in the special detentional atmosphere which prevails in such an institution. False alarms and panic alarms occur, or are made to happen, and a Correctional Officer must leave his meal to check out the alarm. An emergency call during a meal break demands, we were told, attention by a Correctional Officer even though he is supposedly off-duty. We were told that a Correctional Officer must never forget the fact that he serves a special purpose in the institution and that he carries that responsibility with him at all times. For example, if either on his way to or on his way back from his meal break he observes horse-play in the hallways or some kind of misconduct he must take steps to correct the situation even if it only involves a passing verbal reprimand: - 11 - We had evidence that Correctional Officers who supervise work gangs are out in the bush and must eat their meals with the work gangs. A Correctional Officer who is' escorting an inmate to or from a hospital must eat without taking any meal break. A Correct- ional Officer who is performing the duties of an Admission and Discharge Officer does not know when the bailiff will be arriving at the institution to deliver or take away inmates and this requires the Correctional Officer to eat whenever he has .the chance to do so without taking a meal break. We heard evidence that even Correctional Officers who eat outside the institution are never relieved of the duties of their employment. We heard evidence from two of the Grievors that if a Correctional Officer is taking his meal break at McDonald's, for example, he has his radio with him and the radio is left in the "on" position so that he may receive any call which may be made in the institution enabling him to respond thereto. The employer takes sharp issue with the factual situation which .the Union has portrayed. The Superintendent of Maplehurst at the time the Grievances were filed denied flatly that a Correctional Officer who eats outside the institution is bound in any way to perform duties during his meal break. The Union had produced written instructions which were issued by management in 1980 requiring Correctional Officers to obtain "permission" from their supervisors before leaving the institution for their meal breaks. The Super- intendent said that the word "permission" was an unfortunate semantic - 12 - choice and when he became Superintendent he told the President of the Union Local that "permission" to leave the institution was not needed; he wanted the Correctional Officers only to advise his/her Supervisor where he was. We were told that all personnel, including Correctional Officers, are required to leave their radios behind in the institution when they leave it and that it was against rules to take them out. The Superintendent was especially appalled to hear that a Correctional Officer who had taken his radio with him might keep his radio "on" thereby making it possible for a person in a resfaurant to hear some sensitive message not to mention the possibility of-his misconstruing the meaning of the message to the point of assuming that a prison riot was in progress. The Superintendent stated unequivoca1l.y that a Correctional Officer who leaves the institution for his meal break is off-duty during the meal period and is not expected to perform any duties. The Superintendent testified that a Correctional Officer has never been disciplined for leaving the institution for his meal break. There are certain notable exceptions when a Correctional Officer is regarded as being on duty throughout his meal break which he described as being the following:- (a) Night Shift - Because there are fewer duties to perform in the Night Shift the size of the staff is somewhat smaller. In addition, the Correctional Officer is expected to remain inside the institution throughout the Night Shift. A Correctional 'Officer has really no escape from his duties when he is employed on the i - 13 - Night Shift and he has his meal at his place of work. He is regarded, as being on duty for the full 8 hours and for that reason he is paid for his meal period when working on the Night Shift. (b) Supervising Work Gangs - The Correctional Officer is on his own when he is in charge of supervising a work gang. Work gangs work in the bush at some distance away from the institution and the Correctional Officer eats with the gang. He is, therefore, on duty throughout his shift when working with a work gang and, consequently, his meal period is paid for. 1~. - (c) Admission and Discharge Officer - Such an Officer is charged with the responsibility of attending to the admission and the dis- charge of inmates to and from the institution. He does not know when the bailiff will arrive for this purpose. When the bailiff arrives and interrupts the Correctional Officer's meal period the meal period is paid for. Cd) Hospital Watch - When an inmate is taken to a hospital he is accompanied'by a Correctional Officer who supervises the inmate. The hospital provides the meal and charges the institution for the meal. The Correctional Officer eats his meal while watching and supervising the inmate. The Correctional Officer is, therefore, paid for working since he is regarded as being on duty and not responsibility-free. - 14 - (e) Emergency - If an emergency should arise during the meal break the Correctional Officer'is expected to respond. The Superintendent stated that if the Correctional Officer misses all or a large part of his meal break a new meal period will be provided for the employee and he will be given a fresh meal at no cost or he will be allowed to leave the institution -early that day. On .the question of emergencies, the Superintendent stated that over a period of 7 years he could remember only 1 emergency which disrupted a meal period. As regards the Correctional Officers who eat in the institution on the Day Shift and Afternoon Shift the Superintendent's evidence was that they were off-duty. The number of times that a Correctional Officer is called upon to perform any duties in his meal break - were so few and far between, he said, as to be de minimis. The technique .adopted by management in the presentation of the Employer's case was to turn to the institution's log books for records of occurrences of the type complained of by the Union's witnesses. Without going into any detail, the log books showed that the incidents complained of were so infrequent as to be de minimis. Counsel for the Union questioned the completeness of the log books suggesting that the Employer had been selective in what was recorded in the log books. The problem which we have, however, with the Union's case is that it lacks specificity. On the basis of its own case, the Union - 15 - fails to establish that the Correctional Officers are at work during their meal periods or that their meal periods are spent under a .~ cloud of continuing responsibility. One Correctional Officer who complained that his meal period had been frequently interrupted was challenged by Counsel for the Ministry who suggested that he had encountered only 3 or 4 interruptions in the last 11-12 years. The Correctional Officer denied that assertion but when asked to quantify the number of such interruptions could only say "quite a few occasions". Another Correctional Officer who was a thoroughly credible witness testified about "incidents" which had taken him 1 away from his meal _periods; however, he volunteered the statement in his examination-in-chief that it had occurred on only two occasions, once about 2 years ago and the other about 5 years ago! Another Correctional Officer testified that he had had to leave his meal during his meal period in order to restore order in the kitchen area; in his evidence-in-chief he stated that this had occurred 3 or 4 times over a 3 year period. The same witness testified that when eating in the muster'room adjacent to the control room he had to respond to calls "about once a month" during his meal periods. Thus,while there was .something to be said for that Correctional Officer making a claim regarding interruptions in the muster room he could hardly expect to have the same yardstick applied as regards his experience when eating in the staff dining room or outside the institution; the two situations are obviously different. A Correctional Officer -- one of the Grievors -- who appeared to be the "main witness" for the Union was challenged, as we. have \ - 16 - already said, by a number of entries in the institution's log books which appear to discredit his evidence. But his own evidence did not leave us with the impression that the interruptions of his meal periods were anything but infrequent and sporadic. The follow- ing facts emerged:- Meal line supervision - "quite regularly" Sports field supervision - not a single interruption in 1987. Sports gate admittance - In examination-in-chief he said he 1.. must leave his meal 2 or 3 times per week but in cross-examination the same witness testified that there had been no interruptions in 1987 and only 3 interruptions in 1986. Escape from work gangs - He admitted that this had occurred only twice between 1981 and this day. Staff reliefs - in his evidence-in-chief he said that he had been called away "numerous times", but in cross-examination he said that he had been called only 3 or 4 times last year and on each of such occasions for from 5 - 10 minutes each. Relocation runs - He stated that these had interfered with his meal periods about 10 or 15 times between '1981 to this day -- a period of about 7 years. Another Correctional Officer testified in chief that during his meal period he had been summoned via the p.a. system "about 5 times each year". In cross-examination, when he was asked t - 17 - approximately how many times his meals had been interrupted in this manner between the time he cotnaenced employment in September 1979 and November 6, 1985, the date of the Grievance, he could not remember. This is not to say that uncertainty was only on the Union's side. Management officers made their contribution as well. The Superintendent of the institution was asked in cross-examination what he could expect a Correctional Officer to do if summoned in an emergency s\fuation while having his meal. The following exchange resulted:- "A. He must respond and he would be recompensed in some way. Q. But he is off-duty? A. A Correctional Officer knows that if he chooses to eat in the unit he must expect to respond to an emergency." When the Superintendent was asked whether the Correctional Officer would be paid and, if so, on what basis, he was extremely vague. Management's indifference as to how the man would be paid and the basis for payment reflect an attitude which is probably responsible in part for the hard feelings which became evident during the hearings. In addition, we heard some evidence which was of doubtful value and serves only to exacerbate the employer- employee relationship. One of the Management officers testified that when a Correctional Officer takes a meal break he is off duty and that he would not be expected to respond to a summons even if the call was for "all Correctional Officers to attend". We _ - 18 - simply do not believe that evidence, especially since it is at variance with other and better testimony including that of the Superintendent. The issue which we must decide is whether or not the Grievors are to be compensated for their meal periods on the Day Shift and on the Afternoon Shift. This requires us to decide, on the basis of the factual material placed before us , whether or not the Grievors should be seen as being "at work" during their meal periods and as not being responsibility-free during those periods. Unfortun- 2. ately, there is simply not enough evidence before us to enable us to conclude that Correctional Officers do not escape their responsibilities during their meal periods. We do not have a policy grievance before us where evidence may be out in which is generally representative of the situation affecting all Grievors. We have before us 33 separate and individual Grievances. Not only is the evidence which we have heard not enough to establish a case on the part of the 6 Grievors who testified, but we cannot draw infer- ences regarding the work patterns of the remaining 27 Grievors. We asked Counsel for the Union to tell us which of the Grievors had their meal periods outside the institution and he could not tell us; he did not have that information. On what basis then can we impose upon the Ministry the general and all-encompassing obligation of compensating all of the Gri~evors for all of the meal - - periods regardless of their individual work practices? As a matter of passing interest, although this case is nominally entitled as relating to Addison, we did not hear from him, we do not know whether - 19 - he was present at any of the hearings and, in point of fact, his name was not even mentioned once in the course of the hearings. We do not have a solitary fact concerning his work practices. On what grounds, therefore, should we require the Ministry to pay Addison for all of his meal periods at any rate of pay let alone on an overtime basis? Counsel for the Union argues that it is not incumbent upon the Union to establish that any work has actually been performed during any mea\ periods. Counsel argued that we should consider whether or notlthe Grievors were responsible for the performance of duties for the fiployer if the need arose. He argued that we must consider the potentiality for performance of work by the Correctional Officers during their meal periods. The trouble with that argument is that if we are not convinced by the realities about which we have had testimony, how can the potential improve on the reality? We are of the opinion that if a Correctional Officer is called upon to devote any part of his meal period for the Employer on the Day or Night Shift he is entitled to be compensated for such time on an overtime nasis provided the requirements of Art. 13.3.1 of the Collective Agreement (Maximum 'hours of work) nave been complied with. That is what the Collective Agreement calls for. This calls for the Union to police its Collective Agreement in order to ensure that Correctional Officers are paid for such work. The Union has placed a case before us which deals with individual - 20 - entitlement; entitlement by one Correctional Officer does not enure for the benefit of'other Correctional Officers. The material which was placed before us falls far short of discharging tne onus which the Grievors must bear. For the foregoing reasons the Grievances are dismissed. DATED AT OTTAWA this 19th day of December, 1988. 7 ~-L-y ‘...,.’ MAURICE W. WRIGHT,Qk. Vice Chairperson "I Dissent" (Dissent Attached) SHAUN HENNESSY Member GEORGE J.;ffIL@Y Member ’ , -.