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HomeMy WebLinkAbout1984-0577.King.88-03-18577184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (Kevin King) Griever And The Crown in Right of Ontario (Ministry of C6rrectional Services) Employer Before E.B. Jolliffe, Q.C. Vice-Chairman P. craven Member A.M. McCuaig Member For the Griever R.A. Nabi Counsel Ontario Public Service Employees Union For the Employer J. Benedict MaIX3ger Staff Relations & Compensation ,,~ Ministry of Correctional Services .- Hearing - July 24, 1985 - 2- DECISION ? This case is closely related to Mellon 349/83 and the issue is much the same, but there are significant factual differences. Mellon was originally heard in December, 1983, and January, 1984. The grievances of 15 correctional officers at the Whitby jail were upheld by the board and the Employer applied for judicial review. It did not seem advisable to decide the King grievance pending the decision of the Divisional Court in Mellon. On May 21, 1986, the Divisional Court dismissed with costs the .. Employer's~application in Mellon. No reasons were given, but- it was indicated by the endorsement that the three judges agreed with the reasons given in the Board's decision. Thereafter, the grievors sought and obtained a supplementary decision of the Board in respect of the appropriate compensation for overtime which has only recently been decided. The basic issue in the present case appears to be the same as in Mellon That issue is whether the Employer can require correctional officers to attend without pay for 15 minutes in addition to the time provided for by Article 7 and Appendix 3, Schedule A of the collective agreement, which must average eight hours per day and 40 hours per week. These provisions were applicable to correctional officers and certain other ? -3- classifications and were different from those applying to classifications in Schedules 3, 3.7 and 6. The Grievor Kevin King was.a correctional officer at the Niagara Regional Detention Centre and has been President of Local 252 of OPSEU since 1980. 'Until the end of 1984 employees had worked three rotating eight-hour shifts, but as and from January, 1985~, they were scheduled to work 12-hour shifts, which were averaged over a cycle to equal 4. hbu~rs $.Y. week. The arrangement in 1985 resembled the schedule in effect at the Whitby jail, where the 12-hour shift was recognized by a local agreement with thq Ministry. That local agreement (discussed at length in Mellon) spelt out the total number of hours (averaging 40 per week) to be worked throughout a 41-hour week cycle. There was no such local agreement at Niagara R.D.C.., but the practice had been authorized. by the collective agreement article. Another factual difference between the two cases was the following. At Whitby management decided, shortly before the .dispute' arose, to pay overtime (to the nearest half-hour, as provided by Article 13.2 of the collective agreement) if the employee was required to work to 31 minutes after the hour. The - previous practice had been'to pay overtime if work was needed to 16 minutes after the hour. The Board. held that the former practice was correct and the change violated the provisions of the collective agreement and the local agreement. -4- At Niagara, on the other hand, the practice was to require officers to report for duty 15 minutes before the commencement of the shift. This corresponded to the requirement at Niagara that offiders remain for 15 minutes after the end of a shift, without pay. It should be explained that.both institutions required a change-over procedure to be carried on between shifts, so that an officer coming on shifty would be familiar with problems arising during the preceding shift. It is not contended that 15 minutes was always needed, but the special nature correctional institution calls for what is take-over," when keys are exchanged and off i of the work" in a known as a "smooth cers are briefed by the shift supervisor as well as their counterparts. At Whitby the Grievors' claim was that they were being denied overtime pay even if they worked until 30 minutes after the hour. The Board held that this did not meet the overtime requirements,of the collective agreement and that they should .be paid one-half hour at overtime rates if required to remain on duty until 16,minutes after the hour or later. Article 13.2 of the collective agreement is as follows: In this Article, "overtime" means an authorized 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. i - 5 - Further at Whitby, as soon as the grievances were presented, the Employer repuired all correctional officers to remain on the premises until exactly 15 minutes after the hour. In other words, they were scheduled to be on duty for 12 and one- quarter hours, not 12. The evidence was that often their presence was not needed for 15 minutes and they had to sit on a bench until released by the shift supervisor at 15 minutes after the hour. This practice ended later on receipt of the Board's decision, which was that scheduling employees to remain on duty for 12 and one-quarter hours was contrary to the collective agreement and the local agreement. In its recent supplementary decision the Board held that payment should be made at straight time for such 15-minute periods: it was not overtime but resulted from improper scheduling. At Niagara, Mr. King complained by his grievance as follows: I am not being paid for all hours worked as per collective agreement and further that I am expected to be on duty and working 15 minutes prior to my actual scheduled shift canmencement time without pay. The "settlement required" was the following: *_ That I be paid for all time worked either before and/or after my scheduled shift~..at straight time or overtime as is applicable. i - 6 - , The explakation for the practice adopted at Niagara is to be found in i part of the Standing Orders issued by Superintendent J.H'.G. Hildebrandt, said to be issued under the authority of the Ministry of Correctional Services Act, April, 1979, but it is also said to be "subject to the provisions of the M.C.S. Act and Regulations; and any other relevant Act, Regulation or Ministry Directive presently in force..." A number of statutes and regulations a&then cited but they do not include the Crown Employees Collective Bargaining Acts, which certainly has relevance. The Standing Orders contain the following passage, which has an important bearings on this case: me- .; I It is of paramount importance that the following procedures are effected during any changeover .of shifts at this Institution.! , C-nication through the lc&b%k and verbal c-nication between shifts is of utmost iqxxtance and will ensure a smcoth char&over. ,The following procedures are effected during any change over at this Centre. ~. 1 The Shift Supervisor will be responsible for the briefing of the incuning~shift. Senior duty officers will report to the Shift Supeqisor prior to the ccemencement of the.shift for a briefing on matter of Centre iqortance. Correctional Officers are,expected to report at least 15 minutes prior to ccamencement' of a shift in order to be aware of pertinent matters of 4zhe Centre. The Shift Supervisor on duty will assemble the staff in the staffroom, call roll, inspect the staff and br?f the shift of all pertinent details. On order from the Shift Supervisor, officers will report to their assigned areas where they will take an accurate count : i ! -7- of all inmates and inspect the area for security and cleanliness. Correctional staff are required to accompany each other to cmlete the security check and body count. At this time the shift change over certificate (9944) will be completed and the n&r of keys will be recorded and handed over to the relieving officer and record any deficiencies. lXlring the night shift change over, the officer will ensure he sees part of the inmate, i.e. hand, face, foot, etc. If unable to do this, a closer inspection will be needed. The Shift Supervisor will tour the various areas, where staff have been allocated, checking on their changeover procedures, also ensuring an accurate body count is taken, and that each area meets the required standard i.e. security, cleanliness, etc. The Shift Supervisor will also carplete a shift changeover certificate (9944). Ihis certificate will include cash, keys, and total inmate count. The Standing Order quoted above is undated, but Mr. King agreed it had been issued to all officers and had been, enforced for a long time. He alsoagreed that although he was required to report for work 15 minutes early, the Employer's practice was to pay for 30 minutes of overtime if he had to remain for one or two .. minutes after the scheduled end of his shift. In other words, at Whitby officers were required to remain as long as 15 minutes at the end of their shift --- with no overtime or additional straight time: at Niagara they had to report for duty 15 minutes early --- with no overtime or additional straight time in respect of that period. This is a distinction without a difference. ,. i - 8 - Mr. King said in his testimony that he thought changeover time is necessary,~ but his position is that it should be paid for, the time should not be worked "for free." There were oddities in the practice at Niagara which are worthy of mention. The first is that Mr. King repeatedly referred to being "expected" or "required" to report 15 minutes early. The only other witness, a shift supervisor, Mr. Bob Dunn, used the same terms, which seem to.be consistent with the language used in the Standing Order, Exhibit 4, quoted above: "Correctional officers are expected to repo~rt at least 15 minutes prior to the commencement of a shift..." Nothing is said about a schedule. There should be a written schedule showing each officer the shift when he is to be on duty, and normally it would indicate the starting-time and the concluding-time of the shift. '. Such a schedule existed at the Whitby Jail, showing shifts with a duration of 12 and one-quarter hours. No written schedu~le is in evidence in this case: It seems.clear, however, having regard to the imperative statement in the Standing Order, that any officer failing to report "at least 15 minutes prior to commencement of a shift" would be liable to suffer discipline for being late or absent from duty. For all practical purposes, this created a 12 and one quarter-hour shift, not a 12-hour shift. - 9 - A second oddity was obvious 12-hour shift. Mr. King pretence of a a regardless of start attendance record testified that, .ng early, he was always required to sign the in the Staff Room ."on the hour." Only if y used to create the he was late, did he have to sign the actual time. Similarly,. if permitted to leave a few minutes before the hour, the practice was to sign out "on the hour." Incidentally, the practice of entering a fictitious time, i.e. signing in "on the hour" instead of the actual time, was contrary to the following express provision in Appendix 3, Schedule A, at page 72 of the collective agreement: A record will be maintained for each employee affected shming~a running total of hours worked: -- on his regular working days, and - during the averaging period. "Hours worked" of course include time when the employee is .,yequired- by official order (in this case the Standing Order) to be on duty. ~' Mr. King agreed that the changeover procedure did not always take 15 minutes: it might require only 10 or 12. In the event of a special problem, it might take longer and could involve overtime for members of the departing shift. Mr. King also conceded that the 15-minute requirement at Niagara had been in effect for a long time, and he even remarked > - 10 - that he thought the Union had agreed to it, although no such agreement is in evidence. The only written confirmation of the practice is in the Standing Order, which speaks for itself. In that document, any reference to the Crown Employees Collective Bargaining Act or the collective agreement in conspicuous by its absence. At the Whitby Jail there had been consultations between Management and local officers of OPSEU (and eventually a written agreement about local scheduling) but there is no evidence that anything of the kind ever occu~rred at Niagara... As a shift supervisor, Mr. Dunn said he is in a "management position." He confirmed Mr. King's statements about prevailing practices, but also said Mr. King had always been paid overtime when needed after the end of the shift. other grievance about being required to report ear He knew of no 'lY. Yet another oddity~in this case is that the evidence does not disclose whether a meal period within the shift was paid or unpaid at Niagara. An argument put forward by the Employer in the Mellon case was that it should be unpaid, and therefore employees could be required to make up for it by working an additional 15 minutes. It was eventually conceded, however, that there had always been a paid meal period -ate Whitby. This was logical because --- was found in Mellon and other cases --- officers may not leave the premises during meal periods; they are on call throughout the shift and must be considered as being on - 11 - .+ ib duty r even though they take a sandwich or a coffee when poss They are certainly not free to come and go. le. It is therefore necessary to disregard the lack of evidence about a meal period. Whether it was deemed to be paid or unpaid, all officers had an obligation to serve throughout the whole shift, and were entitled to be paid for all the time during which they were deemed to be on duty. In argument, Mr. Nabi relied on the"provisions of Articles 7, 13.1, 13.2 and 13.3.2 of the collective agreement. He said there was no doubt the Grievor had been "authorized" indeed required, by the Standing Order, to be on duty for 15 minutes in addition to his standard shift, which was eight hours before January, 1985,. and 12 hours thereafter. He cited Mitterager .481/82 (Verity) and Religious Hospitaller of Hotel- Dieu of St. Joseph & Service Employees' Union, Local 210, (1983 11 L.A.C. (3d)' 151, where Ms. Saltman wrote at page 158: Although the matter is not free from doubt, it is generally agreed that time worked may'include time during which an ekloyee is under the direction and control of the employer and during which the errployee's responsibilities continue even through the employee may not be performing services for the -lover. Ihis urincinle is established in numerous cases. H&ever, the case of Re Cambridge Memorial Hospital ard Service F+nplovees' Union, Local 214, ambulance attendants' grievance, June 8, 1982, unreported (Brent) is particularly opposite to the case at hand.~ In that case, the employees, who were dulance attendants, were required to - 12 - remain on hospital premises, carrying their pagers, throughout the lunch period so that they could respond to calls. The arbitrator held that since the employees remained ~~ under the control of the employer and since their responsibilities continued, they rrmst be considered to be performing work throughout the lunch period. Mr. Benedict put his argument on two grounds: there was no violation of the agreement when no overtime was paid in 'T. respect of a period which was not near a half-hour; secondly, the Grievor was estopped from asserting his' claim when he had accepted for years the practice embodied in the Standing Order. Although agreeing that the Grievor was at work when reporting at 14 or 15 minutes before the hour, Mr. Benedict pointed out that not all overtime work must be paid at overtime rates. As provided in Article 13 and made clear in Mellon, overti@ means "an authorized period of work calculated to the ,.,._ nearest half-hour..." As for estoppel, Mr. Benedict said the Employer's practice at Niagara "has stood since 1973" and the Grievor had~ been aware of it for.over a decade. There was no evidence he had ever objected to it prior to his grievance of April, 1984. It may be noted here that when the grievance was presented the Niagara.Detention Centre was still using so-called eight-hour shifts'; it was not until the end of 1984, according to Mr. King that a change was made'to so-called 12-hour shifts. In - 13 - both systems, however, the Standing Order was in effect and officers were required to report "at least 15 minutes prior to the commencement of the shift." Whether or not a written schedule existed, the reality is that officers, as they well knew, were being scheduled to work on each shift 15 minutes more than the time provided for by the collective agreement. Mr. King was reasonable in conceding that changeover time is "necessary, " having regard to the facts of life in a correctional institution,, but his point is that it should be paid for. He conceded, however, that perhaps it should be paid at straight time, not at the overtime rates. In this case, unlike Mellon, there was a long delay in grieving against the Employer's practice. As Mr. Benedict emphasized, it was not a new practice and all employees were~ well aware of what was said in the Standing Order. On the other hand, it seems clear that both the Employer and the officers were aware of the need for a changeover period of about 15 minutes and it seems equally clear that neither really understood the provisions in Articles. 7 and 13 of the collective: agreement. It is significant that both the Crown Employees Collective Bargaining. Act and the collective agreement were ignored in the Standing Order which remained in effect at the time of the ..,.. grievance and thereafter. 5 - 14 - We cannot accept the estoppel argument for the following reasons. The Employer was' not prejudiced by the delay in grieving. It is conceded that changeover time was "necessary" and no doubt it will continue to be necessary. Mr. King never challenged the Employer's right to require it; he merely asked to be paid for the 15 minutes required. The Employer was not lulled into a sense of insecurity by the failure to grieve. It needed the changeover time whether employees liked it or not, which Mr. King himself recognized. Far from being prejudiced, the Employer had the advantage of considerable unpaid work over a period of / years by Mr. King and about 46 other officers. In effect, Mr. Benedict was relying on what is known as estoppel by conduct. That doctrine is explained by Professor, Palmer at page 151 of his text, Collective Agreement Arbitration in Canada, quoting the late Judge Reville's award in United Gas Ltd. (1962) 13 L.A.C. 80: Concerning the third method of creating an estoppel, namely by conduct, the rule is that where one person has made a representation to another person in words or by acts and conduct with the intention and with the result of inducing the representee on the face of such representations to alter his position to his -.detriment, the representor in any .litigation which may afterwards take place between him and the representee is estopped as against the representee from making any averment substantially at variance from his former representation. 2 - 15 - In addition to the three methods of creating an estoppel described above there has grown up in recent years a doctrine sometimes known as "promissory estoppel" the limits of which are not yet well-defined. Under this doctrine where one party says or implies to the other that their existing legal relations shall be affected in scnm way with the intent that the other should, and the result that he does act upon a supposed change in their relations, the first party must accept those relations subject to the qualifications which he himself introduced. In this case there is no evidence that Mr. King or any other employee ever made representations to the Employer on which the Employer relied to its detriment. The employees merely obeyed the .Standing Order, which they were assured (by the Employer) they were bound to do. There is not An iota of evidence that the Grievor ever suggested to the Employer a "change in their legal relations." On the contrary, the evidence -is that the Superintendent unilaterally instituted a change.in relations by enforcing the procedure set out in his Standing Order. The fact that employees did not grieve about it for several years is not conclusive. The Employer's argument about undue delay may be disposed of summarily by reference to Brown h Beatty's second edition at page 102 and the cases cited in foot-notes: - 16 - Rather, declinina to deal with a disoute on the basis of undue -delay is akin to the equitable doctrine of lathes as applied in civil courts, International Nickel Co. of Canada &g. (1974) 6 L.A.C. (2d) 120 (Simnons); Algane Steel Co. Ltd. md, (1973) 2 L.A.C. (2d) 230 (Andrews); Ottawa Ne i L ibid, and Re Saanich Firefighters Union, Local 967, and District of Saanich (1971) 22 D.LR. (3d) 577, 71 C.L.L.C. 14, 110 (B.C.S.C.), and the decision ineach case is a matter wsmwr for the arbitrator to make in his discretion after considering the effect of, and any ewlanation for, the delay. See, e.g., Re Clements and the Crown in right of Ontario (Liquor Control Board of Ontario) (1981) 28 L.A.C. (2d) 289 (Crown Employees Grievance Settlement Board, Prichard); Liquid Carbonic Canadian Corp. Ltd. (1971) 23 L.A.C. 78 (Ravner). Accordinalv, it has been held that where the delay arose because one-.party was unaware 'of the violation the grievance was held not to be inarbitrable on the ground of delay. International Nickel Co. of Canada Ltd. (1975) L.A.N. (Sept, 1975). As with the doctrine of lathes, mere delay alone usually will not be a bar to arbitration. International Nickel Co. of Canada Ltd. (1974) 6 L.A.C. (2d) 120 (Sinsions); Union Gas Co. of Canada Ltd. (1971) 23 L.A.C. 83 (Brown); Canadian Industries Ltd. (19691 20 L.A.C. 386 (Palmer). In each case the critical factor will be whether the delay caused prejudice to the party objecting. aVCP Tele-unications .(1981) 3 L.A.C. (3dl 54 (Roberts); (2d) 46 (Palmer); Fiberglas Canada Ltd. (1976) 12 L.A.C. Dryden Paper Co. Ltd. (1976) 11 L.A.C. (2d) 337 (Brown) Governing Council of the Universitv of Toronto. (1975) 10 L.A.C. (2d) 417 (Adell); Parking Authorit. :v of Toronto (19741 5 L.A.C. (2d) 150 (Adell), affd 47 I 40 (Ont. Div. ct. ) ).L.R. (3d) We agree with Mr. Benedict that overtime for 15 minutes or less is not payable at overtime rates. That 15 minutes isnot the nearest point to the half-way mark; it is exactly half way there. The practice at Niagara resembled the practice (for some time) at Whitby, when employees were required to remain for exactly 15 minutes after the hour. The only difference is that the Niagara Standing Order specified "at least 15 minutes", although Mr. King seems to have interpreted it to mean 15 minutes. ‘Z .e 3 - 17 - One other circumstance has a bearing on the matter. The Board's original decision in Mellon was rendered on September 18, 1.984. That decision made it perfectly clear that the Ministry was not entitled to schedule work to be done for more than the 12 hours specified by the applicable agreements. The hearing in this case was held on July 24, 1985, when the Ministry had been aware of the Mellon decision for at least 10 months. Indeed, Mellon was referred to by spokesmen for the parties. Notwithstanding Mellon, the Employer made no change in its practice at Niagara and persisted in defending it. No further ...~,r :. comment is necessary. We see no reason to depart from the principle established in Mellon and upheld by the Divisional Court. We find that the Standing Order requiring officers at Niagara to work 15 minutes more than eight hours (prior to 1985) and 15 minutes more than 12 hours (from January, 1985) was an improper scheduling of their time worked in violation of the collective agreement.. The Grievor, Mr. King, is entitled.to redress from the date of his grievance, April 16, 1984. A 15-minute period of overtime does not call for payment at overtime rates. It was scheduled by Standing Order and continued to be scheduled in defiance.of the collective agreement and the Board's decision in Mellon. I~t must therefore be paid to Mr. King at straight time in r,espect of all,shifts worked after April 16, 1984, except ,ing only those shifts at wh .ich he is recorded as having signed in late. It is so ordered. - 18 - ,a If, as the Employer contends, and as the Grievor has conceded, a 15-minute changeover period is necessary in correctional institutions, it could be regularized by the parties when negotiating their next collective.agreement. As pointed out earlier in this decision, the Employer is required by Appendix 3, . Schedule A rn the'collective agreement to keep a record of hours worked. If that record shows shifts to have commenced on the hour, the Ministry will know that the Standing Order required work to begin.15 minutes earlier. With that. knowledge, itshould be possible to calculate the number of ' quarter-hours for which the Grievor should be paid at straight time. If, however, due, the Board wil 1 party. any difficulty arises in settling the amount reconvene on the written request of either Dated at TLXONTO this 18th day of Marc~h, 1988 A.M. McCuaig - Member