Loading...
HomeMy WebLinkAbout1984-0876.Tangie et al.87-02-23 . .' . . -............-,.........-- ~-- ---...... ,0.-.--- ,.--."- -'- .,' .<-.'-_...... _. ... ~" ~~.._- ._."_"_~ .~ ____........ ....__. ". _ _ n.. ~_.~. ...._ _.. ~~",,'____"'___"___~"__'_ _.. ___. . .... . .__~.......... .._,....._....,..:..___."~..u.._::... _. ". _~ <_ .'-_~_. ~._. ....... ____L_ . _ . 'e = ONTAFlIO CROWN EMPLOYEES I"" - GRIEVANCE SETTLEMENT BOARD /81} DUNDAS STREET WEST, TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 TELEPHONE' 416/598- 0688 File Ii 876/84, 877/84, 878/84, 879/84, 880/&4, 881/84, 882/84, 883/84, 884/84, 885/84, 886/84, 887/84, 888/84, 889/84, 890/84, 891/84, 892/84, 893/84, .' 894/84, 895/84. 896/84, 897/85, 898/84, 899/84, 900/84, 901/84, 902/84, 903/84, 904/84, 905/84, 906/84, 907/84, 908/84, 909/84, 910/84, 911/84, 912/84, 913/84, 914/84, 915/84, 916/84, 917/84, 918/84, 919/84, 920/84, 921/84, 922/84, 923/84, 92lt/84, 925/84, 926/84, 927/84, 928/84, 929/84, 930/8i~, 931/84, 932/84, 933/84, 934/84, 935/84, 936/84, 937/84, 938/84, 939/84, 940/84, 941/84, 942/84, 943/84, 944/84, 945/84, 946/84, 947/84, 948/84, 949/84, 950/84, 951/84, 952/84, 953/84, 954/84, 955/84, 956/84, 957/84, 958/84, 959/84, 960/84, 961/84, 962/84, 963/8/;, 964/84, 965/8i+, 966/84, 967/84, 968/84, 969/84, 970/84, 971/84, 972/84, 973/84, 974/84, e 975/84, 976/84, 977 / 84, 978/84, 979/84, 98Q/84, 981/84, 982/84, 983/84, 984/84, 985/84, 986/84, 987/84, 988/84, 989/84, 990/84, 991/84, 992/84, 993/84, 994/84, 995184, 996/84, 997/84, 998/84. 999/84, 1000/84, 1001/84, 1002/84, 1003/84, 1004/84, 1005/84, 1006/84, 1007/84, 1008/84, 1009/84, 1010/84, 1011/84, 1012/84, 1013/84, 1014/84, 1015/&4, 1016/84, 1017/84, 1018/84, 1019/84, 1020/84, 1021/84, 1022/84, 1132/84, 1133/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Tangie, Zibritovsky et al) Grievors e and THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) Employer Before: P. Knopf, Vice-Chairman T. Traves, Member F. T. Collict, Member For the Grievor: D. Bloom, Counsel, Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: J. Benedict, Manager, Human Resources Management Hearing Dates: July 4, 1986 November 28, 1986 December 5, 1986 e- . . . . ... _"" L"_n."'- _ ~. _~, "~""".~,;,,_.,,,,,_~_, ..~_. -.... _c..",__.~ ,~ '---"---"._~ _ .....' -'. ...._"'-~_~ r::....:...,.;.... _:... . T..-..n:~T~"'_'C;_. ..' - , . . . ._~ ........, ~,.-....M-n'-_~ h"__'___>_"~_~"-":' .-,..__ _. __ . Jo....,.,.;.~.__ ___ _ L_~'~ .~~~ U.-'- i_ ...", e ; . A~lARD This case involves two sets oE grievances, both oE which concc~n a question of payment to Correctional Officers for their lunch periods. The first set of grievances claims that lunch pariods or a portion thereof should be deemed to be periods for which payment must be made. The second set of grievances claims that lunch periods on some of the overtime shifts should be paid. e The relevant p~ovisions of the colIectiv0 agreement arc as follows: 12.1 ARTICLE 12-REST PERIODS The present practice fo~ rest p3riods in each shift shall be maintained ARTICLE 1)-OVERTIME 13.1 13.2 e The overtime rate Eor the Qurposes of this .1\grcemcnt 511a11 be one and one-half (1-1/2) times the employee's' basic hourly rata. In this Article, "overtime" maans an authorizeo period of work calculated to the n::larcst half-houc and performed on a scheduled working day in addition to the regular working pedod, .or performed on a schaduled day(s).off. 15.1 ARTICLE IS-STAND BY TIME "Stand-by time" means a period of time that is not a regular Qeriod during which an em~loYge keeps himself available for immeJiate cecall to work. ART~CLE 17-MEAL ALLOWANCE 17.1.1 An employee who continues to work moce than two (2) hours oE overtime immedia tely follo\'ling his schedul0d . hours of work without notification of the requirement to work such overtime, prior to the end of his previously -- :~e li~~ . . -':e ':-e 'e - . - . - -.' " - . _._~_ _"'- _...:......:..._T.......:... ._.......~..._..:._..:.....p.:....:..-'<'O~....J:~~-'-"-..."-'.~~,.;:._':...w ._"'-.~..-.:.~;~........:.......__~___......._r~.,..:--w,.... ...."....~... ."L'.":'~_ ..:...~___...._._.__..._.....~ .~._~._,._.....,_...._ . ~a._._'~"",_, .. ,'I', -fl, 17.1.2 17.2.1 17.2.2 '"7 ") "') J.. I . .t. . ..J 17.2.4 17.2.5 The _ "l _ L. scheduled shift, shall be reimbursed fo!:" the cos t 0 f on8 (1) mca 1 to thr~c dollars ($3.00) except wh~re free meals arc provided or wher~ the employee is heing comp0nsatcd for m'](lls on some other basis; A reasonable time wi th pay shall oe allowed the employee for the meal bLeak either at or adjacent to his work place. Cost of meals may be allowed only: If during a normal meal period the employce is travelling on governm~nt bus i n,}ss 0 thc r than: (a) on patrol duties, except .as ___ __r.": .1_....:1 .._...:.t_..... ~JI.V'l.L'...l-=<...L UIlUo.:; L subsection 17.2.3, or (b) within twenty-four (24) kilometres of his assigned headquarters, or (c) within the metropolitan area in which he is normally working; T~ __ _...._1_u__ __ ,.....~ t-............1 ~I'~.; r-lr- ~ ~ ......... 0,11 ';'IU!:-'.LVY':;::\:;; UJL 1:'1;,.4 IwoL"'J..L ......U ......1.;,,;.:JI L..::J reimbursed for overnight accommodation required for the trip~ If, in an unusual non-recurring situation, the dopartment head authorizes such payment; If, i n an'y r e cur r i n 9 situ a t ion, th e Management Board has authorized such payments because of the special nature of tho assignments. Boa~d heard three _L _._~~____ __..!II _-..-......................:..... U.L eV.Luellc..;o;:: dllU dLI,JUUlt:lll... days However, the relevant facts are not in dispute and can be summarized as follows. The grievances arise out of the Mimico Correctional Centre. 1\L. ....1....-.... C__:l:Lr.. _ ,..,__....."'_.....:_.........1 t'\ l.. l..rla L La~ 1.1.1. l..y, a .....UL L<;;L,. L.L'JrlC'-L Officer works a regular eight and a half hour shift with one half hour being considered by management to be an unpaid 1"__k _,.".....~......,1 "'J"lh-. ___,,1~,.... ~h;t=f- o....-h!3~,~l.oC!' ~'t""o. ..L U 11 '-' II .t-' '='..L. ..L uu. . J. l J. 'li::; L v ~ U ..L U L ..-:J ~.. ..L !...... w...... ~ 1_"-. ...... ..L...... o.J (,.A .L.""'" . '__-'L_4-"-__'_'~ ,~_____'._~..~. ....: ___u~ c. . . .-, - - .__ ____ ._.._ _'_'-_~"'.', ___ _'"._..C___~.......~;. . . . . . . - L . , . , ' .:0. ;:~. _ :::..:. ....;..T .,"y'_ ._........,..........."'..... .__,_ ..__ _;';'--+'_,_~.. _. .___.. n _~ ...~.. _....-.-.... ___ ,.-_,_ __~L_' .... .._._.,_.. _ _.....~. i_, _-"_ _.:,~ _"'.....'r- _r."~'::'___. " ,j -~e . . I"" , , - 3 - , ", 6:45 a.m. - 3:15 p.m. 2:45 p.m. - 11:15 p.m. 10:4S p.m. - 7:15 p.m. '-.- The overlaD in shifts enables the incoming Correctional Officers to take over resQonsibilities from the Correctional Officers who are ending their shifts without allowing any breaks in the security of the Eacility. \~hile half an hour is allowed for the s~ift change overs, tho evidence is clear tha t the personne 1 changes ac tually occur within abou t 15 minutes. Thus, the practice has dev8lopcd that Officers sign in at the actual time of thei!:' arrival at the facility. Howeve!:', they sign out as of the designated end of the shift evsn though they actually can and do leave a9proximatelj 15 minutes before ~ha shift officially ends. Management is well aware of this [H'actice and tacitly allows for it. Therefore, while the shift is technically an eight and 'a half hour shift, only eight and a quarter hours are typically served by the officers during the shift. t ....e .. -, .':A. .. ., In a normal shift, the lunch period occurs in about the middle of the shift. One half hour is alloweJ with a further five minutes to enabl,; the officers to get to and from their command posts. While a great deal of evidenco was presented regarding the Officers' responsibilities during the meal periods with regard to beiQg on call for emergencies, no claim was made by tha Union at the end of the 1ay for any compensation for such responsibility. Therefore, that evidence shall not be recited. shift. unpaid sh i f L Officers are paid for eigl1 t hours I du ty on a normal They are considered ~y managemGnt to have a half hour meal period, totalling the eight and a half hour - ,':e ,::e ',:e ,e . ' ., .__...._,. _-..._.........:.~.....~ L~"o-~', "'_. .:._d.'_oH-............_...l,__....;;...,_....._...:~"-.... .~.- _ ~...;.~L_____ .._~_ ..u..~ "'..........~....<_.........._.._,.. _.._...._..~.~ ._~___._~........=- --'- ._..~... .........-_..._...-'..."'-~j;:.. 'I ~ /i - 4 - The Boar1 also heard evidence about the practice of the facility regarding payment far meals during overtime shiEts that follow a regular. shift. Overtime shifts are eight hours with a half an hour meal break included. A Correctional Officer may be told to ser.ve overtime following his regular shift in two ways. First, he may have received notice prior to th3 day of the shift. This is referred to as an overtime shift "on noticell or- "sch~duled" overtime. Secondly, he may be required to work the overtime shift without receiving notice until the day he is already serving the regular sh i f to Thi s is re fe rred to as ";"i thou t no tice II or "non-scheduledu overtime. Typically, the la tter si tua tion will occur when another Correctional Officer calls in sick for the following shift. All parties agree that the Employer has paid for the meal periods on the overtime shifts if the Correctional Officer was required to work without notice in accordance with Article 17.1.1. However, the Union presented charts taken from the Employer's records to show that the Employer has in fact also paid for meal periods on overtime shifts even when notice was given prior to the day of the shift as far back as 1982. There are some isolat~d exceptions in this which occurred 25 out of approximately 250 times from January of 1982 to December of 1983, or approximately 10% of the time. Neither party was ab18 to give any explanation of why meal periods were pai1 in mast instances, but not in other instances. In fairness, tha records were incomplete and did not provide full information to anyone as to which overtime shifts were scheduled and which were not. However, the Ministry conceded that the documellts covered both scheduled and non-scheduled overtime shifts and that the documents did indicate that payment for meal periods must have been made for non-scheduled overtime periods on many, if not most of the occasions. Thus, the Correctional Officers came to expect to be paid eight hours for overtime shifts and considered the r _.. ...._,,~.......:.'~_____,.__.~_.......... _"".......:........Ilo.>-."",-;.~. _ '.-;. .'. -. .... . .. ~_" _~'-,>-'_____.,..._I._. .,_,~...........>--........:;._" ..__. _....__.__~~ L_~~~-,_.,,~.__~"_~"'_."~:"'.~.'--_'_L~".'.~T._ .. ~ _. __,~_._--=._.... ~..._,.~~...J-___..., ~,_...._ .--'....:.-_,-......._-_~-_~...:_:.;__._:_._.........:.._ .__~..~ ~..... ~ {i ,:::e - 5 - : '-t;. half hour meal period within ~\e shift as a paid meal pc~iod. However, in approximately nugust of 1984, it began to come to tho Union's attention that employees were only receiving seven and a half hours' pay if they worked an ove~time shift for which they had had prior notice. This changz occurrcJ because a neW Supori n tendon twas appoin tad in Sep t-:!mbe r of 1982. It took him till approximately June of 1983 to explain and instruct his staff that meal periods should only be paid on overtime shifts that were assigned after rcg~lar shifts without notice in accordance \V'ith Article 17.1.1. While it e seams some individuals were aware that payments had been changed, the Union per so di~ not ~ecome aware of the change until 1934 when these grievances were launched. 'e The other r~lcvan t evidence prasen t':ld to the Boarrl concerned the negotiating history of Article 17. This was presented 'through Wally Gorchinsky, who at all relevant times was the Director of Staff RBlations for the Civil Service Commi S5 ion and a member of the nego ti a ti ng team for tho Commission since 1972. He had also presented evidence which was relied upon by another panel of this iloa~d chai~2d by Professor Samuels in the case of OPS~U (Union Grievancel v. Hinistry of Trans:?ortation ~:md~ommunications, GSil file 724/83 [hereinafter referred to as the Samuels .d,;cision]. The par ties in the case a t hand ag L~ed to accep t Professor Samuels recitation of .the evidence presented by Mr. Gorchinsky regarding negotiating'history as factually correct and admis~ible as such before the Board, subject to the Union's argument that the evidence should not be considered relevant or oE any persuasive weight. With that in mind, the relevant portion of Professor Samuels' award which recounts Mr. Gorchinsky's evidence is as follows: ~ .~. . Before 1972, the~e was no collective agreement. Regulation 749 to The Public Service Act (then R.S.G. 1970, ch. 386, as amended) set out the working conditions and employee benefits. The ,e . ~_~'__=--:'L_-':';--=_L._'U~_~_"':':_:-C ............:~_=;;.....i- r.o .:........._. ,......~J...:.._,_.. _~__..___.._...:.~_,._ ..~........._..... .__......_ ......~.L.._._ ~ _-=-- ~ _ _..~_ ~_~~___"--'-_'",:. _.-,...:~_-: .~...;;;-:..:..,......:........, ........~..,~_~..:......:.._.:_.:-__~.....L ..... :!.........._:;.__~.;~:.:........ .:......'-~,;.. {l ,.:,. .:. - :5 - .-., ~ > ., Civil S~~vice Association of Onta~io had baLgain2d for years with the Provincial Government over these provisions, and their agr0em8nts rssu1teo in changes to the regu1 a Hons f rom time to time. If the negotiations Eailed, ther8 would be resort to arbitration. In 1971, an arryitration award established the working conditions and employee benefi ts to Decembet:' 31, 1973, and these were incorporated in the r8gu1ations. ,...... " In 1972, The Ct:'own Employees Collective Bargaining Act was enacted. Henceforth, there would be collective bargaining in the public service, and the matters covered by regulations under The Public Service Act were now negotiable. In Aoeil 1974, the Civil Service Association of Ontari~ presented its first proposals under the new system. At that time, the current regulations under The Public Service Act covered hours of work in sec t:"ion 9: "..~e (1) Where the specifications for a classified r?osition in the administrative staff call for a normal working day with regular hours, the hours worked shall be 7 1/4 hours pet:' day and 36 1/4 hours per week performed during the hours as determined by the depu ty minis te r beg inning no t earlier than 8:00 a.m. and ending not later than 5:00 p.m. '''e (2) There shall be a recess period Eor lunch of no t more than 1 1/4 hours taken at such times as the official in charge with the approval of the deputy minister de termi nes. (3) Where the deputy minister does not determine the hours juring which work is to be performed, the hours shall be from 8:15 a.m. to 4:30 p.m. with one hour for the rece ss pe ri od for lunch, for the months of July and August oE each year, and shall be from (3: 30 a. m. to 5: 00 p. m. for the remainder of the year wi tl1 I 1/4 hours for the recess period Eor lunch. There was paid meal pet:'iodsu. cove r the a 40-hour no provision in these regulations for a period, and no ~rovision for "rest Furthermore, this provision did not Traffic Patrollers and others who worked w<3ek. , .... . .. e '. ,. e -:1) :- .j ...:..... ...~ __....--,........._:. ~.;.__--.._ ._,./,...>_~",",. _-_ ";'_'_"_"_:';"-.;...c-.._"_":" _~ _:'. ~ ___' "_.. ~_.,-,... .........:.:...:;.:..... _.. ~-_.. -.',~_.~'.....:'._.._ ~..: :':,_...-. "-:. '......~_~_...r:~..... /. - 7 - In its 1974 proposals, t!1e CSAO roques tQd tha t the 36 1/4 hour wor~ weck sho~ld be "~xclusiv~ of meal perioJs" (Article 9.1), and that "the hours of work shall be inclusive of break ocriods" (Article 9.2). For those emploYG~s with ~ 40-hour work week, the Association requested that "the hours of work shall be inclusive of meal periods and break pc riods" (Ar tic Ie 9.3). And then the Association ~roposcd a new provision dealing with "rest periods". The proposed Article 13~1 read: During each tour of duty, employees shall be en ti tIed to two (2) res t periods wh,ich may be taken away from their immediate work area. The first I?cdod will be given between the emploY3e's starting time anJ his Eirst meal period; and the second between the end of the Eirst meal period and his normal finishing time. . The I?artics would have to go to arbitration before settling the agr~emcnt, but on the way, they reached ag reemon t on some ma t te rs. Ar tic 1e 7 S2 t out the hours of work for employees, and 'made no mention of paid meal periods. Article 15.1 provided for nrest periods", in precisely the same language as we now have it in Article 12.1. Before the Board of Arbitration, chaired by H.D. Brown, in spite oE the agreement betwc3n the I?arties on some matters, the CSAO pro~osed a pro vis ion de a I i n g with "r est per i od s" . I t was th e 1974 proposal quoted above (Article 18.1).... Management's response to this proposal was the follo\'ling: :,'" . The CSA01s request for a formalized provision of two r0st periods (duration unspecified) could result in a further increase to payroll cost of at least $36,000,000. No public servant is now deprived of "coffee breaks" or "rest I?criods" as are required by the employees. Quite apart from the provision of service to which the-taxpaying public is entitled, the public service is not like an industry conveyor belt assembly operation, where the entire operation can be controlled and closed for a sl?ecifid rest period. The administrative problems (as well as cost) involved in "policing" the rest breaks would be virtually unmanageable. The employer asks e . " ..... ,e '"It " , 'e ~ I. . . . . ._ _. ~_ ~__''''''':.'''_ _.___ ___..........................~- ..........'_., "'- <-'....,.;_~..+~...:......:;.-h ..:_n.u~__'..-r-o______....-.:..,_...-:.-*'" :~.,~_>..__..:....-.: _. . ~_ _-,~_~~....-.-'- _ _ .~.~ '.. -'-_. _L~_~~~__~~~_ _._' .. _.; -_--'.-~, .:~ ~ ~....:._~ ~."_ f, - 3 - that the info~mal D~actice now en}oyed by employees be continu~d and asks that the Board reject this droposal by the CSAO. And th8 Board of Arbitration accepted management's position, awarding (on page 9) "the prescnt practice for rest period in each shift shall be maintained". Before 'thefi~st col18ctive agreement was reached in 1975, the CSAO became the Ontario Public Service 8mployees Union. The first collective agreement was signed on March 12, 1976 by Mr. Gorchi nsky foe the Managema n t Board of Cab i ne t, and by Scan Q'Flynn, Anurcw Todd, John OfElc~ and J. II. Fuller for the Union. Article 7 provided for the hours of work in much the same language as now exists. There were no raid meal reeiods. Article 15.1 provided for "rest pedod-s"lin precisely tile same language as we now have in Article 12.1.... In 1976, the Union proposed that th~re be a definition of "meal breaks" and that "no employee shall work longer than five (5) hours without a meal break". As well, the Union again proposed th3 "rest periods" provision originally requested by the Association in 1974, and rejected by the Board of Arbitration. But no changes wcr.e made in th~ hours of work (Article 7) or rest period (Article 12.1) provisions in the collective agreement for January 28, 1977 to January 31, 1973. Again, Mr. Todd suggests that that the Union did not intend to distinguish between !lrest pGriods" and the "meal break", rather that both terms were merely different ways of describing th0 same thing---rasponsibility-free time. However, the language used in the Union proposals clearly suggests to the rcadel:" that a distinction is being made and it was reasonable Eor thc employcr to reach the understanding that the Union meant somathing different by the term "meal break" from the term "rest periodsn. In 1973, the Union 9roposed that Article 7 be amended to provide that "an employee shall be entitled to a meal break at or near the mid point of his shift; away from his assign~d work area" and that Article 12.1 be amended to provide that "an employee shall be entitled to a paid rest period away from his assigned work area at or near the mid [Joi n t in the firs t hal f and a t or near the mid poin t in the second half of his shif t. II Bu t no r .~_c_., _._.._._............_,;._r_---.I.,;"._....-.~~ ..._T__~.__ , , . . _.." , C. _ . , __. ~___. .......~._, _~_r_""_, ...~._....~......",-, __._~.:..:.,~_:...'.:..n.- __.....,_ .....T. '.'.."HW. ___,.-~ ..._....-:-. ..,-.........-.:onh-~.. ...,,",_..~;_,. _.~...,,_ _":..._ "._.'_~_ _.....,.......,;..-.:..~,_--+.-'--: ~....._.~~..-,_....,._,,~+ __. ~___~_~.__._____'_..:.~.. ',' ~ e .- 9 - " ~ . " . . changes were made in the next collective agreement. Again the languag8 of these proposals suggests clearly that the Union understood "meal break" to be something differ:ont from a "r:est period". : , In 1979, the Union propose J tha t Ar ti c Ie 7 be amended so tha t the no'rmal wo rk day wou ld be "inclusive of a meal period", and again proposci the amendment to Article 12.1 of the year before. Neither of these proposals found their :way into the collective agreement for January 1, 1980 to December 31, 1981. e No amendments to Article 12.1 were proposed for the next agreemen,t which is the one still in effect. Article 7 provides for the hours of work, and makes no mention oE a paid m8al period, and Article 12.1 deals with "rest periods." [Article 12 has been renumbered to Article 17.] Throughout the review of the evidence on negotiating history, Professor Samuels commented that "rest periods" were distinguished from "lunch periods". "',e In addi tion to the evidence prosen ted in the Samuels case, Mr. Gorchinsky testified before our panel regarding the evolution of the meal allowance provision in the collective agreement since 1974. Since the first collective agreem~nt, only the amounts for the meal allowances have 'changed. Also the sen tcnco tha t is curren t1y Article 17.1.2 \o1aS originally tied together with the current 17.1.1 as one continuous paragraph. The paragraph was divided in the final draft of the 1977 collective agr-eemcnt so that the last szntcnce became the current 17.1.2. The Argumen t It should be noted at the ou~set, and as stated above, that while this panel heard evidence regarding the responsibilities of the Correctional Officers during their ,"" '-. ~_-;;~.;~ -,,:-,,-,--_ _.___~~__-:-..: 4~.T'_ ,_~-_-"----'::_":":""":__-":""":''''':'':''''''''''L''_.:~.''':'-V~.._ __,....~ __.;.......~~ ..., . __'':''.c.~'; _''''-:d~ ............'--'~~L~~'~~~~......,~._~~..__-+-._~-t-.,~..-_:..r ._....~_.~.".. ~..__t._. .......'_r_~r_r..;_'_, ,_.... _ U~.....'-'----"~.. .........,_..__.___ r. - 10 - lunch periods, and while the grievances were initially fr:-am'clu under Article 15 of the collective agreement, the Union did not ba'sc its final argument upon Article 15. Instead, the Un ion argued thiJ thai f the lunch pc r i oj ough t to be deemed to be a paid period. The basis of the Union's argument is that the evidence established that while there ma~ be three official shifts of eight and a half hours in duration, the employees regularly sign out and leave approximately 15 minutes before the formal end of the shift. further, there 1S a thirty-minute lunch period plus the five minu tes travel time within that shift. Therefore, the Board was asked to cone lude tha t th~ work day in real i ty is no t 3-1/2 !lou rs wi th a thirty-minute unpaid lunch period, but actually 8-1/4 hours with a 30 to 35-minllte break for lunch. Tilen, the Board was asked to subtract the lunch period from the to'tal shift to see that there is actually a 7-3/4 hour working time, whereas the Officers are paid for 8 hours. Thus, we were asked to conclude that half the lunch period is actually paid. Further, we were asked to conclude that since this 15 minutes of the lunch period is established as a matter of' past practice dating back as far as anyone can recall, this practice should be protected by Article 12.2. -, I) With regards to the claim for payment for meals during overtime, th3 Board was asked to conclude that the practice as of 1982 was that persons were paid for a full 8 hours on a scheduled or unscheduled overtime 'shift of eight hours following a regular shift, and a half hour was allowed for lunch. We were asked to conclude from the evidence that there has 'been a virtually consistent practice at thG facility of making no distinction for payment for lunch periods on overtime whether notice was given or not. Since this has been the recorded practice since at least January of 1982, the Board was asked again to rely on Article 12.1 to require that that Qractice continue. The Union mentioned '. ", , , ^ I. that it was open foe the Board to allow the grievances on the . .,' -.c , .. _"'.~"'-.""---"._":";""""'';'''T",r.._C-=''.'::''':_.'_l.-:-''':'."._ __:..:_ .:~_ _. ..._~;. .;.-..~-:._......._-..:___.:.-.:._:_~_ -~'..........:~. .,~:...';.._~_~:_ _.~;~._. ._ __... ....._..... .....'.. _....h.... "'h _'.~...... ,_~'.~_ _,,_._.'.. A _.. _ >. _ ,,. ...... ._..._......__ .0.,.__ _h....:_."'-'-_.- u....~H-.. ..L;.',;. .. ~ ,. 3- .e - 11 - -- basis of estoppel; this was not fully dev3lopcd or p~csscd in argument. In suppo~t of its a~guments, counsel for the Union cited the following, cases: opsrw (Burns) and Minist~y of Corructional Services, Boa~d file 165/B2; OPS8U l~cllon) v. Ministry of Correctional Services, Board File 349/33 etc.~ OPSEU (Union) v. Ministry of Transportation and Communications, supra, Hiram Walker and Sons Limited, (1973) 3 L.A.C. (2d) 103 (Adams); Country Place Nursing llomes Limited, (19B1) 1 L.A.C. (3d) 341 (Pritchard); and north CariboQ Force Labour Relations Association, (1985) 19 L.A.C.' ( 3d) 115 (Hot;)c). ~ -"",' >:e On behalf of the Ministry, it was argued that the grievances ought to be dismissed. It was submitted that Articles 17.1.1 and 17.1.2 are the only articles in the collective agreement that provide for payment during meal periods. It was said that these articles are very specific and, form the only basis for payment under the collective agreement for meal periods. It was said that if the Employer had in the past paid for any meal periods which do not fall within A'rticle 17.1.1 or 17.1.2, this was merely a gratuitous practice that falls outside the collective agreement and would be beyond the jurisdiction of this Board to award. The Board was urged to rely upon the negotiating history of the parties to establish what was 3aid to be an ambiguity in the language over the term rest ~eriod. Further, it was argued that Article 17.1.1 and Article 17.1.2 must be read togethc~ so that it would become apparent that the reference in 17.1.2 to II t:1C meal break" tias d i rec tly bac]~ to 17.1.1 and the specific conditions of that a~ticlc. It was submitted that to read the article othe~wise would ba to rewrite and expanj upon the terms of the collec ti va ag remen t. In suppor t of the Ministry's argument, the following cases were ref0rred to: OPSEU (Union Grievance) and Ministry of Transportation and Communications, supra: OPSEU (Shep~ard) v. Crown In Right of Ontario, GSB File 510/02: British Columbia Telephone Companj, -- ~. .;;, "_I~...............~.........._..______:_':_~''''.~'''''''''''':_''':'''.'''L''. L~L _ ~L_-_.'._.'~'._~"'" ~. ._~~' :"'~"-_'~":"'__~''''L~'~L '. :'~'-~_':"""":'~+--':"L"'~_~."---'::':"_'''''~.''_ __ _ ~..:.~ ~_..~~~_'___ n_c._L~... ~.~. ..._.___.U_____ _~""...._~..,.._~_.:.__:.._~ ............~~ .~'" _.........:-._..-.'"...__<_-....._..:.~ ..,'..;;~~ It ",:' e - e :..""';: ~ .~. - 12 - (1976) 14 L.A.C. {2;J} 239 (Larson): Noranda Metal .Industries Limited, 34 CLLC 12,093 (Ont. C.A.); OPSEU (Burns) v. Hinistry of Cot:'t:'cctional Scrvi~~~, ~upra; Q.PSCU ([.1ittcrogger) and Ministry of Correctional Ser'viccs, GSB file 181/32; OPSE~ (Rober'tson) v. Liquour' Contr~~?ard of Ontario, GSB file 469/82: OP5CU (Dymond) v. Ministry of Correctional Sorvices,' GSB File 377/82: Wilson and Ministry of Correctional Services, GSB File 170/78; OPSEU (Walker and Taylor) v. f1inistrty of the Solicitor General, GSB Files 417 and, 418/82;. Cowie and Ministry of Correctional Services, GSB File 99/78; Muni~~liti-~t Met~opolitan Toronto and Toronto Civic Employees Union, Local 43, (1975) 10 O.R. (2d) 37 (O.S.C.): Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, (1931) 33 O.R. (2d) 476 (C.A.): Smokey River Co. Limited and United Stee~ Workers, Alberta L.R. (2d) 193 (Alta. C.A.): OPSEU (Changoor) v. Ministry of Transportation and Communications, GSB File 526/82: OPSEU (Boyde) v. Ministry of Correctional Services, GSB File 105/83; OPSSU (Schmid) anu Ministry of Transportaio~ and Communications, GSB Pile 595/34; OPSEU (Smith) and Ministry of Community and Social SCr'vices, GSB File 237/81; OPSCU (Mellon) v. Ministry of Correctional ... . ..)~rVlCCS, supra. The Decision -We shall deal' first with the question of payment for Corr'ectional Officers during normal meal periods. The Union contends that the evidence establishes that the Correctional Officers' actual shift is 0 hours and 15 minutes with a 30 to 35-minu'te period allowed for lunches, whereas they ars paid on the basis of an 3-1/2 hour day with a half hour for lunch. The Union would have the Board suo tract the 30-minute lunch period from the actual shift of 8 hours and 15 minutes and conclude that 7-3/4 hours ace being paid rather than 7-1/2 hours. We are then asked to conclude further that half of the meal period has been established to be a paid rest period that is protected by Article 12.1. -*__ ~.......,...j ~-.,.:; .__--;...,.~~H:.;.+.._...:. ~.......~___~ ::,._. .'__c,~. .-",--.& ~""'~~L .......::.. ..~;;. ............... .._....: _.............~~... ._~.__'"'-.'_ . .. __~<L. n. ~_._._~_~_.......:...:...._~.~._~ _._ .~~ ~._c.~,_. '-+~.. ~U ~.;,--,~ ~._~'_~ .~...--'o~--,-->,,:____~-~"~'. ~_:....~..-_.__~.':';_-=---..::_~"':'~; =---.....: :.t'- ... ,-.: ,10 ~:e - 13 - j;....; I,':" , . It is true that the Correctional Officers at Mimico have enjoyed a grace period \</hereby they are allQT,o'oo to leav3 their 8-1/2 hour shifts ar?proximately 15 minutes early. This practice has been in force for as long as any witness can recall and certainly since 1982. But it doe~ not follow that this practice creates a partially paid lunch period that is the practice protected by Article 12.1. The practice simply allowed the Correctional Officers to leave early if their responsibilities had been properly transferred to an incoming Officer. It did not create a "partially paid meal period" or evun change the length of th~ shift. While Officers are allowed, to leave early, there was no evidence to sugges t tha t they had the righ t to leav3 early or could expec t to prates t if they were needed to remain on duty until the end of the 8-1/2 hour shift was' served. Therefore, we reject the Union's submission that the practice of the facility created a partially paid lunch period or created a concept of an 8-1/4 hour shift. '" . 1 ',. Fuether, foe the Union to succeed in this argument, it would have to ~rove that the practice of payment for all or part of the lunch period is protected by Article 12.1. The Union did not argue that the collective agreement provides for paid meal periods. Instead, the Union argued that the practice which had developed at the facility is a prac t ice which is pro tec ted under Ar tic 1e 12.1 and is enforceable by this Board. Similar questions have arisen before this Board on previous occasions. In the Burns c~sc, su~~, the Board was asked to deal wi th the s ta tus of meal periods on a regular shift at the Toronto jail. The Burns award had to deal with a question of whether a "meal poriod" is a "rest period" that is covereJ and protected by Article 12. The evidence in that case concerned a situation where the employer had for many years paid eight hours' pay for an eight-hour shift which included a half hour meal ..8 . n._-:.....~__cu-!....:.. ........_r:.'..~ '.--..-..-__ ,..__~--'~_ , , ..~. ~. _. _"'_..~<r'. __.. __.. _ __ _._. _ _ ,~_"'_~_ .._~.-t *......_-....._....o_~...:..~_-~ --=---..~-_ L' .,~ ~.~' .~.."--'~ ........._~"~_,=.:--... _. ~ ..... -1'-- !l t'e - 14 - , , period. It was concluded that there was an established I;lractice of a paid meal period in the facility. In deciding whether that practice was pLotccted by Articl!) 12, the Goard in Burns concluded tha t a meal peLtod is a res t pedod which is pr:otec ted by Article 12 because the fac ts and the language in the collective agreement established no reason to differentiate between a meal period and a rest period. Thus, the Burns case concluded that on the facts presented a meal peLiod enjoyed the same protection as a rest period undeL Article 12. i ~ ~ ~ '; A similar question soon arose again in the case of Mellon, supra. The issue ar~se, like in B~rns, where the regular shift hours were changed. The issue was whether there was a practice of having a paid meal period during regular shifts that could be protected by Article 12. The Mellon case followed the reasonin~ and the rationale in the Burns decision. >..-j . However, the matter did not rest with the Mellon decision. In April of 1986, this Board released the Samuels decision, supra. That case involved Traffic' Controllers who had from 1971 to 1982 worked eight-hour shift~ taking meal breaks whenever they could manage. In 1982, they were ass ig neJ to 8-1/2 hour sh i f ts and we re told to takG a definite 30-minute unpaid meal break. The union alleged a breach of Article 12.1. The Board heard evidence of the Controllers' responsibilities before, during, and after lunch breaks regarding their sign-out anJ their call-ins. The Samuels pan81 reviewed the Burns and Mellon decisions, but pointed out that they were decided without the benefit of evidence regarding the history of negotiations betwecn the parties which had ~een presented to the Samuels panel and which is cited above. The Samuels Board concluded that t~e decisions reached in the Burns and Hellon casds were i ncorrec t because they had no t had the bene fit 0 f the . . ~ '" -- I' '. I': ' ~ ".=.: ).... " " ~ -- !.... . , , . . -- - - . . . >__._-_ U_"'~o.-~_. ~'._~~___.. ,"",_~ ~ _o~ .-..._..... '~H..~__+..-~_........ _...... ~~_._........L___.._ _ ~ -.. _ r _ ,. ___ ,_...........__....._,_ ._~ ~......._.4____r..... .____.." .~ . h - 15 - evidence of the negotiating history to assLst 'in the interpretation of the collective agreement. As mentioned elsewhere, Prof~sso~ Samuels concluded that the negotiating history revealed. a clear distinction between the concept of meal pe riads and t:'es t pc ri ods. He thus concluded tha t Article 12 only protected rest periods. When the issue (lease shot'tly thereaf te r in the Sheppard dac is ion, sup ra, the Board followed the Samuels award. Again, the l?anel in the SheQI.)ard case had had the benefit of Mr. Gorchinsky's"evidenca. ,-,.......___, ~_._ LI._ ,.,_!__ ............i _.~........_.....J Lt...':.- ........................ L__ t:':.......i \....oun:sc.1. [0[" l:.[le UIl.1.UrI rlClU ULYt.:U l:.I1.l.::; pOIl'';L V..l L lll'..I tha t the Samuels and Sheppard de cis ions were i ncor r-cc t t!1a t the negotiating history presented to the panels did not .:oc::t-",hl;c:;.h ",nv I"'(")nc:;.~nqllc:;. hphl1ppn t-hp n"'l'"t-ipc:;. I-h::.t- (",(")111c1 hf.> ~- ------~- -.....J -_...._--,~----- -- _r~____~~ -.--- L.---- ------ -....- -- -------- -- used as an aid in interpretation. Citing the CountrL.J:.lace Nursing Homes case, su~r~ at PO. 345 - 347, counsel argued that negotiating history should not be relied upon unless it established a "substantial concensus" between the parties as to the true meaning of the article in dispute. It was submitted that the evidence of Mr. Gorchinsky established no such consensus and thus should not be relled upon by this ,Board. However, this Board is persuaded that although the language of Article 17 was initially imposed upon the parties by way of an arbitral award, the negotiating history following tha t award es tabl ishes a consensus be tween the parties as to the_application and meaning of the article. We find that history to be of assistance to this Board in interpreting the collective agreement and we agree fully with the reasoning and the analysis set out by Professor Samuels in his award. Thus, as in the Samuels and the,Sheppard cases, we are forced to conclude that the collective agreement distinguishes between rest periods and meal periods. Any practice which developed at the Mimico facility re~arjing the payment of a portion of the meal period for the Corractional Officers may well hava been established. However, it is not pr.otected by Article 12.1. Article 12.1 ~ '. .. ._~~... ...... . ... ,_ _ -_'. - '~'___L ___... __ _ _... _" _ ...._ ~....._..._"-~_" -_ _~..-."'-r-Oo T~_. ,__'._ .. .~;.;.. _......_~,,_~.__._" ._-0-0 '. '_"-' --,-~..... _,_:. ._. ~_ ._., _C_C_"'__~'~_'_; ~. ~_'. LU_._~. _ _---'- i_u.~..... ...___, '.~ __ _..,..... _ _~a..__ _._ r h."_.....___.._n_______ r...... ~~e ! ' ,.. .. \. ~ . .~ . I) - 16 - can only be a protection Eor rest periods which must be cons ide red as scpara te and d i 5 tinc t. We now turn to the ques tion of payrnen t for lunches on over time sh i f ts which occur irnmed ia te ly af te r a regular shift. The evidence makes it clear that at least since the b~ginning of 1982, the Employer has established a ;;>ractice oE pay i ng employees Eor meal pc d ods who the r: the ove r time shi f t was assi]ncd with or: without notice. Articles 17.1.1 and 17.1.2 clearly require the Employer to pay for a meal period on such an overtime shift if the overtime shift is assigned wi thout notification. Both parties ackn.;)wlcdge this. ,Regardless of the extrinsic evidence, we are also able to conclude that Articles 17.1.1 and 17.1.2 on thei~ face make it clear that meal bn~aks are only to be paid on certain overtime shifts. Articl~ 17.1.1 and Article 17.1.2 must be read together. Article 17.1.1 deals with reimbursement for meal costs on overtime shifts that are assigned without notice prIor to the end of the ~reviously scheduled shift. This is a specific situation limited to specific circumstances. Clearly, the allowance is not applicable to overtime shifts assigned with notice. Article 17.1.2 then follows wi th referance to the righ t of 11 the employee" [emphasis added] to a meal break with pay. First of all, the numbering of this article as o. subs~ction of Article 17.1 suggests it ties in with the concepts contained in Article 17.1.1. But more coml?elling is the term "the employee". The words "the em[)loyee" can only refer to "the employee" cove red in the s i tua tion addressed in Article 17.1.1. Throughout the entirety of the remainder of the collective agreement, p~ovisions with general a9plication refer to "employcesll. The Union is not suggesting- that Article 17.l.2'obligates the Employer to pay for all employees I meal breaks. 'fher-e fore, it mus t be recogni zed that Article 17.1.2 obligates payment for meal breaks only on the overtime shifts covered in Article 17.1.1. This 0:.- ~':e ~ ..'~ "'. :. "..-.. ~ ~I~ , . C....'_..T-'._.. ......~ ._ __ .0 ,.' '.... 0.. ._._..'un'~ ,+-:r..V_-n," _ ._~-."L_,;'_'.T._'~_ ._~'- __ ....... _~"-__ ._.,_~._ . .,........._ . ::': ~ ~. - 17 - inte~pretation is bolstered by the negotiating history prosen ted by Mr. Gorchi nsky wh i ch es tabl i shed tha t or i.y i na lly Article 17.1.2 was contained in the Same paragra~h as Article 17.1.1. The subsections were then divided placing the last sentence on its own but still as a subsection of 17.1. All this indicates that the parties recognized that Article 17.1.2 referred back directly to Article 17.1.1 and thus only required the payment for meal breaks in the specific circumstances covered by Article 17.1.1. Therefore, it cannot be said that the collective agreement obligates the Employer to pay for any meals on overtime shifts unless the overtime immediately follows a scheduled shift and is assigned with no notification. In order to succeed in th i s por tion of the case, the Union would have to es tabl ish tha t the Eml?loyer I 5 prac tice at Mimico of paying for meals on overtime shifts following regular shifts regardless of whether notice was given is ?ro tec ted by Ar ticle 12 .1. Howev~ r, agai nit mus t be said , , that tha meal period provisions are distinct fr.om the rest period protections provided in Article 12. Thus, Article 12 cannot be rclied upon by the Union to prese~vc the practice which had developed at this facility. We find on all the evidence and consideration of the law that Article 12 was designed to deal with rest periods as distinct from meal periods. The meal periods arc addressed separately in Article 17.1.1 and Article 17.1.2 and the Union cannot rely upon Article 12 to preserve the practice which may have developed at this'facility. The Union did not urge this Board to accept an argument on the basis of estopQcl, thus, the concept was not fully argued. However, it is possible for this Board to commen t all the fac t tha t the evidence did not establish an estoppel situation because there was not sufficient evidence to establish any reliance or detrimental reliance which is requisite to the success of such an argument. _ _ .._._~~ ~P___J_'_' ~~~'~"""""'''''''_-.>L~' _~'__,_ ...."..,_~_..~.~_. ~C_"_'''.~'''''T_.__'-+..'~~-:_'__ h '-.-'.~ ~~-_:.~ - '~'.t' ~ If. t:e - 13 - I, Under all these circumstdnces, we find that the grievances 'mus t Ea i 1. . " DATED at Toronto, Ontario, this 23rd day of February, 1937. 1?J /~ P. Knopf, Vice-Chairman ~~ T. Traves, Member qq~J F. T. Collict1 Member :',. .