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HomeMy WebLinkAbout1987-0405.Hotchkiss and O'Donnell.88-08-17EMPLOY&DEU COURDNA’E DEL’ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before Between: THE GRIEVANCE SETTLEMENT BOARD OPSEU (J.B. Hotchkiss and T.P. O'Donnell) The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: M. Mitchnick Vice Chairman H. O'Regan Member H. Roberts Member For the Grievers: N. Wilson Counsel Gowling & Henderson Barristers and Solicitors I . For the Employer: P. Thorup Counsel Winkler, Filion and Wakely Barristers and Solicitors Hearing: January 22, 1988 DECISION This is a grievance on'behalf of Tim O'Donnell and John Hotchkiss claiming overtime pay pursuant to the provisions of Article 13 of the collective agreement. That Article provides: ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 l/2) times the employee's basic hourly rate. . 13.2 In this Article, "overtime" means an authorised period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed~ on a scheduled day(s) off. 13.3.1 Employees in Schedules 3.1 and 4.1 whop perform authorized work in excess of seven and one-quarter (7 l/4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. The two grievors are "shift supervisors' employed by the Ministry of Transportation and Communications in its Maintenance Service yard located at Arthur, Ontario. The province is broken up into Regions, and below that, Districts, for the purpose of such servicing, and the Arthur yard is located within the Stratford District of the Southwestern Region. Within that District the Ministry employs some 90 operators to staff its road crews, and has arrangements to supplement those crews with outside contract-operators (as well as seasonal hirings). There are 46 -2- "shift supervisors" providing a bargaining-unit level of supervision across the Region, and four of those (including the two grievers) work out of the Arthur yard. The evidence discloses that the scheduling of hours of work had, historically, not been uniform across the province, and that Stratford was one of the few Districts in which the shift supervisors, in the winter season only, were scheduled for an 8-hour day (apart from week-end day shifts) in the course of which they were to take a half-hour (paid) lunch-break. All the rest of the staff in the District were scheduled to be at work for a g-hour day, with an hour off for (unpaid) lunch. Over the course of time this discrepancy led to disgruntlement on the part of the latter group, and complaints were .made about it at the District's annual seminar in the spring of 1986. The schedules'of all staff, including the shift supervisors were already the same for the summer period, being an 8 l/2 hour day inclusive of a half-hour qf unpaid lunch, and in October of that year notice was posted vindicating that that would be the schedule for all staff for the winter period as well. The present grievances were filed by shift supervisors Hotchkiss and O'Donnell in February of 1987, and the claim put forward is that in practice the grievers really are required to "work" the half-hour "lunch", and are therefore i :7 I -3- entitled to be paid overtime each day for that half-hour in excess of the normal 8-hour day. The first issue, therefore, is whether, in the language of the cases, the lunch period established for shift supervisors under the new winter schedule is in fact "responsibility-free". Each yard is under the overall supervision of a Patrol Supervisor; being, in the c.ase of the Arthur yard, Al Dietrich. The Patrol Supervisor works a day shift only, and responsibility for the other shifts is assumed by a shift supervisor. The shift supervisor conducts his own patrol of the area, and decides whether any ploughing, sanding, maintenance or repair work is required. He also responds to requests from-the police or the public with respect to emergency ploughing or sanding, although in the case of a call from the public, he will check out the area first. The supervisor will then contact an operator to carry out the ploughing or sanding. There is also standard maintenance .and paperwork to be done by the supervisor around the yard, although it is acknowledged by both sides that on good-weather days things around the yard can be "pretty slow". Mr. O'Donnell testified that his work responsibility since the change in schedule has not changed from what it was before, and that he feels responsible for radio contact at all times during the shift. The service truck he drives is equipped with a radio, and in addition he has a scanner which he purchased on -4- :his own initiative and which allows him to tap into the MTC calls if he is at home for lunch. Mr. O'Donnell testified ,further that he was told by Al Dietrich after the schedule (change to continue to take his lunch breach "when he can", although not during the last half-hour of the day, which since the change is now used as an opportunity to allow the overlapping shift supervisors to liaise with one another. Mr . O'Connell says that he normally takes his lunch break at t.he yard, and that there have been occasions when a call has come in and he has had to get up during his break to dispatch an operator. Ms. O'Donnell acknowledges that he is then in a position to sit down and complete his lunch, and that he cannot rec,all any occasion when circumstances have been such that he has not had an opportunity to have his lunch, if he had wanted to. Mr. O'Donnell also acknowledges that he does not believe stopping for lunch at a restaurant when out on the road is in breach of any rule, but adds that he has been asked by Mr. Dietrich to call in and let supervision know when he i,s doing that. Mr.,O'Donnell further acknowledges, however, that he does not call in when he stops at a restaurant, and has - never been reprimanded for that failure. If Mr. O'Donnell works late on a shift, he does put in for overtime, and such claims are accepted without challenge on the basis of the time he himself has recorded. Mr. O'Donnell adds, however, that Mr. Dietrich has indicated that no claims for overtime on the lunch-break would be paid. -5- The testimony of Mr. Hotchkiss is much the same as Mr. O'Donnell's. Like Mr. O'Donnell, Mr. Hotchkiss is obviously a highly conscientious individual who takes his responsibility to keep the roads clear and safe very seriously. Mr. Hotchkiss does not own a personal scanner, and prefers to eat lunch either at the yard or out on the road at a restaurant in order to better stay in touch with the situation. He brings his lunch to the yard only about 40 per cent of the time, and has been asked to call in when he pulls off the road to eat at a restaurant. He does not, however, do that, and has only been contacted at a restaurant during his lunch-break: once in seven years. It appears that Mr. Hotchkiss has, like Mr. O'Donnell, had his lunch at the yard interrupted from time to time by a call, and indicated that the availability of back-up crews has not been the same since 1984. On quieter days, however, Mr. Hotchkiss acknowledges that he might on occasion take a little longer break than half an hour, or might, for example, stop and do some personal banking in the course of his shift. The testimony of employer witness Richard Pike, a shift supervisor out of the nearby Harriston yard, is very similar, in the sense that he indicated lunch may be a little rushed on the odd day, but no one minds if the supervisor makes that up the next day. I t, I t : The employer a 6 - Is0 ca ,lled as witnesses Mr. Dietrich, Mr. Pat Scott, Maintenance Services Supervisor for the Stratford District, and Mr. Joe Kernaghan, the District Engineer in charge of the District. Their evidence establishes that it is left entirely to the discretion of the shift supervisors where and when they will take their lunch, although they are encouraged to try to take it around the mid-point of the shift, like the rest of the crew, if possible. Mr. Scott testified that it is hoped that a shift supervisor will call in to the office if leaving his truck to go to a restaurant, but that it is not Ministry policy that he do so. Unlike the case of the members-of the Ministry's Emergency Road Patrol, who perform their full shift on the road, and are equipped with beepers for emergency dispatch when they are out of their vehicles, there is no certain way for a shift supervisor to be contacted if he happens to be out of the yard, and out of his truck. If contact is made with the shift supervisor during his - lunch, with a problem that required immediate attention, i,t would be expected that the supervisor would deal with it at once (and the evidence of, the grievors leaves no doubt that that is in fact what they would do). If, as a result, the supervisor was prevented on such an occasion from getting his full lunch-break, .both Mr. Kernaghan and Mr. Scott made it clear in their evidence that the Ministry would have no difficulty with the supervisor submitting a claim for overtime. Mr. Dietrich could not recall making any comment to the - -7- contrary at the time the new schedule was posted, but does recall telling the grievors that they'd "better not put in for overtime" on their lunch-bre'ak at the point that they filed this grievance, because he was "ticked off" at the grievance itself. The obligation to pay overtime, under Article 13.03, is for "authorised work" performed in excess of the regular eight hours a day. The question here, therefore, is whether the grievers' work-day is structured in such a way that they can in fact be considered as "working" each and every day during the additional half hour that has been allocated by the employer for lunch. This issue has been before the Board in a number of cases and, as the Board observed in Mitteregger (#481/82, released November 17, 1983), at page 7: 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 resp.onsibilities continue during that period. The issue of continued responsibility during a meal break is a factual consideration which must be based on the evidence presented. In that case the Board concluded on the evidence before it: 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 responsibilities during his meal period. On the rare occasion - 8 - 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 lieu thereof. Here, it cannot be said that the Grievor was under the control of management or was considered on duty during meal break. The case of OPSEU and the Ministry of Transportation and Communications (#724/83, released April 30, 1986) on the other hand, dealt with the Emergency Road Patrollers mentioned in the present case. In that case the employees were required to sign on and off over their radios when leaving their vehicles. And more particularly, the Board found that the Emergency Patrollers believed they were operating under a requirement to let the dispatch know where they could be reached during all breaks, and did so. The Board concluded, in light of that perceived requirement, and 'the fact that, as in the present case, emergency situations did arise from time to time which had to be tended to immediately, the Emergency Patrollers could not consider themselves to be "responsibility free" for any part of their day. The material distinction in the present case is that here the shift supervisors are not required to keep - management or a dispatch office informed of their whereabouts at all times. Emergencies do arise, and the shift supervisors 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 I 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 Daily 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 supervisor 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. To that extent (only), therefore, the grievance is upheld, with the Board remaining seized of the matter in the event the parties are unable to agree on the amount of any compensation so owing. 5 r - 10 - DATED at Toronto this 17th day of August,1988 M. G. Mitchnick - Vice-Chairman Harry Roberts - Member