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Home My WebLink About1999-1753 & 2015-0814.Union.17-12-19 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 1999-1753; 2015-0814 UNION# 00U018; 2015-0678-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel A. Harris Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Susan Munn Treasury Board Secretariat Legal Services Branch Counsel HEARINGS July 22, 2016 and July 6, 2017 - 2 - Decision [1] These matters involve the calculation of compensating time for Correctional Officers (COs) who miss their meal breaks while on hospital escort duty. There are two grievances. The first is GSB 1999-1753 pursuant to which is a Memorandum of Settlement (MOS, dated June 12, 2007). The second alleges a breach of that MOS and is GSB 2015-0814. [2] The issue, neatly put, is whether a CO on a twelve hour shift performing hospital escort duty is entitled to compensating time off for two missed meal breaks. [3] At the centre of the issue is an MOS as partial settlement of GSB 1999-1753. The provisions of that MOS include the following provision at paragraph 6: 6. When correctional officers assigned to hospital duty do not receive a meal break, they will receive one hour compensating leave for the shift. [4] This appears on its face to allow for one hour of compensating leave per shift. Notably, there is no distinction drawn between an eight hour and a twelve hour “shift” in paragraph 6. The Union is of the view that a CO on an eight hour shift, who is on hospital duty, would miss one meal break. A CO on a twelve hour shift, who is on hospital duty, would miss two meal breaks. The Union says that the language of paragraph 6 supports the conclusion that the former would receive one hour of compensating time, and the latter would receive two hours of compensating time. - 3 - [5] The Union submits that the extrinsic, explanatory documents circulated to the members of the bargaining unit support its submission. [6] The extraneous documents said to support the Union’s interpretation here include a document entitled “Questions and Answers – 3rd Edition – With Respect to the July 11, 2004 Memorandum of Settlement on Community Escorts”. In reviewing that “Q & A” document, it is my view that it supports the conclusion that a CO on a twelve hour escort duty shift would be entitled to only one hour of compensating leave. The Union’s submission relies on parsing the text of the Q & A document to emphasize the phrase “a meal break” which it says results in one hour of compensating time for “each” meal break. However, the text does not say “each” meal break. The Q & A document expressly stated that a CO working a full twelve hour shift at the hospital is entitled to one hour of compensating leave for the missed meal break. [7] I would not be inclined to look beyond paragraph 6 of the MOS to the Q & A document, or to other extrinsic documents, but even if I did, they do not support the Union’s contention. [8] A Memorandum dated March 2, 2005, does not support the Union’s contention. It states: If meal breaks cannot be provided to officers performing a hospital escort, the officer will be provided one hour of compensation at straight time. This one hour at straight time is compensation for not being relieved for a meal break and applies to both paid and unpaid meal breaks. (emphasis added) - 4 - [9] This document specifically refers to “meal breaks” and limits the benefit for missed breaks to one hour of compensating time off. [10] A Memorandum dated May 17, 2013 also does not support the Union’s submission. It states at paragraph 2 as follows: If meal breaks cannot be provided to officers performing a community/hospital escort, the officer will be provided one hour of compensation at straight time. This one hour at straight time is compensation in recognition for not being relieved for a meal break and applies to all officers who are not relieved for a meal break when on a community/hospital escort. (emphasis added) [11] A Memorandum dated May 23, 2012 also does not support the Union’s submission. It states at paragraph 1 as follows: In March 2006, the Provincial Health and Safety Committee agreed to provide compensation to correctional officers for a missed meal break. This one hour at straight time is compensation for not being relieved for a meal and applies to paid and unpaid meal breaks. (emphasis added) [12] Similar language is found in a Memorandum dated May 23, 2012, relating to the Algoma Treatment and Remand Centre. [13] The thrust of the Union’s argument is that any reference to “a” meal break means that one hour of compensatory time is owing for “each” meal break. [14] John Millar testified on behalf of the Union. He has had experience as a CO at the Thunder Bay Jail and the Algoma Treatment and Remand Centre (ATRC) in Sault Ste. Marie. He testified that, at the Thunder Bay Jail, CO’s on an eight - 5 - hour escort duty shift would receive one hour of compensating time for a missed meal break. On a twelve hour hospital escort duty shift a CO who missed two meal breaks would receive two hours of compensating time. In his cross- examination, he identified an MOS, relating to the Thunder Bay Jail that, on its face, conferred that benefit. Both of the grievances before me reference this MOS; he believed that this MOS only applied to Thunder Bay. He also testified that the issue of the amount of compensating time for missed meal breaks arose at the ATRC when the Employer cut back on the payment for travel time. From the time he transferred to ATRC, compensating time for missed meal breaks was one hour, whether the escort shift was eight or twelve hours in length. [15] The Employer submitted that it is paragraph 6 of the MOS of July 11, 2004 that governs. I agree. [16] The Union relied upon the following authorities: Brown and Beatty, Canadian Labour Arbitration, December 2014 paragraph 4:2000; Greater Essex County District School Board 2013 CanLII 5327 (ON LA) (Knopf); Rogers Communications and London Technical Employees Association 2017 CanLII 29568 (ON LA) (Snow). [17] The Employer relied upon the following authorities: OPSEU and Ontario (Ministry of Government Services) (GSB #2009-1293 etc, November 30, 2010, Abramsky); Community Living Oakville and OPSEU, Local 249, 1997 - 6 - CarswellOnt. 6541 (Tims); Selkirk College and B.C. Government Service Employees’ Union, 2002 CarswellB.C. 3327 (Chetkow). [18] There is no ambiguity in paragraph 6. Whatever the shift may be, eight, ten or twelve hours, if the CO on hospital escort duty does not receive a meal break, they are entitled to one hour of compensating leave “for the shift”. The MOS does not say “for each missed meal break”. It could have said so, but it does not. To accept the Union’s interpretation would be to read out of the MOS the phrase “for the shift”. To confer a monetary benefit, specific language is required, which is not present here. In my view, a CO on hospital escort duty who does not get a meal break is entitled to a total of one hour of compensating leave for the shift in which they do not receive a meal break. [19] With respect to the Union/Flank grievances arising out of the Thunder Bay Jail, GSB 2006-0779, OPSEU # 2006-0737-0001 and GSB 2006-1406 OPSEU # 2006-0737-0010, there is an MOS entered into without precedent or prejudice dated June 12, 2007 that establishes that one hour of compensatory time is given for “each missed meal break”. Nothing in this Decision derogates from that agreement for the Thunder Bay Jail, which agreement was reached at the summary mediation process held at the Thunder Bay Jail, known as the “road show”, and in respect of which Arbitrator Leighton is seized. [20] Accordingly, these grievances are denied. - 7 - Dated at Toronto, Ontario this 19th day of December 2017. “Daniel A. Harris” Daniel A. Harris, Arbitrator