HomeMy WebLinkAbout1976-0054.McCarthy and LeClair.77-02-1754 & 56/76---- ..- ._.--.
CROWN i%PLOYEES 416 9644426 suite 405
GRIEVA~~~E .§~TTLEWNT 77 Bloor Street Yest
EOhRO TORONTO, Ontario
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IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Messrs. John W. McCarty and Thomas LeClair
(The Grievors)
And
The Ministry of the Environment
(The Employer)
Before: 13. M. Beatty - Chairman
G. K. Griffin - Member
H. E. Weisbach - Member
For the Grievor:
Mr. Grant Bruce - Grievance Officer
Ontario Public Service Employees Union
Toronto, Ontario
For the Employer:
Mr. W. Gorchinsky - Senior Staff Relations Officer
Staff Relations Branch
Civil Service Commission
Toronto, Ontario
Hearing:
Suite 405, 77 Bloor St. W., Toronto, Ontario
February 14th, 1977
2.
The circumstances giving rise to the grievances of
Messrs. J. McCarty and T. LeClair are not in dispute and were
in fact the subject of an agreed statement between the parties.
That statement, as filed at the hearing stipulates that:
1. The GSB has jurisdiction in this matter.
2. There are no preliminary objections.
3. The collective agreement dated March 12,
1976 between the OPSEV and the Crown in
right of Ontario, represented by Management
Board of Cabinet, was and remains in effect
at all times material to this grievance.
4. Although Messrs. McCarty and Le Clair
submitted identical individual grievances
in Sault Ste. Marie on May 4, 1976, the
parties have agreed that the issue is the
same for these two grievers. Further, as
the issue is one of contract interpretation
in which slight differences of fact are not
relevant, the parties agree that either
grievance will stand for both.
5. The parties do not intend to call either the
grievers or their immediate supervisor as witnesses.
6. At all material times the grievers were employees
within the meaning of CECBA and were covered by
the collective agreement referred to above.
7. The grievers worked on a regular rotating two-
shift basis at a water pollution control plant.
When the grievers have worked a week of shifts
from 1600 to 0030 hours (days 1 to 5), they
then have the rest (23% hours) of day 6 off,
all'of day 7, and report for work at 0730
on day 8 to begin a week of shifts of 0730 to'
1600 hours. The total hours between 0030 on
day 6 and 0730 on day 8 are 55.
8. The issue: Does the collective agreement require
that the grievers be paid at the rate of time and
one-half for those hours worked that fall within
60 hours of the completion of the grievers'
previous shift when two successive days off
intervene.
In addition the parties were agreed that this hearing would be
limited to the merits of the grievors' complaint and that in
the event their grievances were to prevail on the merits the
parties would, in all likelihood, be able to resolve the
resulting question of the compensation that would be due and
owing to them. So advised, this Board agreed to remain seised
of the matter of compensation if the parties were unable to
settle that matter themselves.
As described in the agreed statement of facts and as
confirmed at the hearing the issue between the parties is a
relatively narrow one. Specifically the issue that falls to be
determined by this Board is whether the twelve hour "turnaround"
period that is described in article 10.3 is required to be
provided in those instances where a scheduled day (or days)
off, or indeed a day of sickness or a holiday, intervenes between
the last day of'the employee's first shift schedule and the first
day of a. new shift schedule. That is, and with reference to the
example described in the agreed statement of facts, the issue
before this Board is whether an employee who enjoys a day or
days off between a change in his shift schedules is, in addition,
entitled to claim the "turnaround" period described in article
10.3 prior to commencing the new shift schedule. In that regard
article 10.3 provides:
The Employer shall make every reasonable
effort to avoid scheduling the commencement of
a shift within twelve (12) hours of the completion
of the employee's previous shift provided however,
4.
that if an employee is required to
work before twelve (12) hours have elapsed
he shall be paid time and one-half (1%) for
those hours that fall within the twelve (12)
hour period.
After considering the arguments of the parties and the
language of the agreement, we are of the view that these grievances
can not succeed. In the first place and as argued by the employer,
on the facts of the grievances before us it is clear that these
grievors were not in fact required to work within the twelve
hour period immediately succeeding the completion of their
afternoon (1600-0030) shift. To the contrary and as stipulated
in the agreed statement of facts, there was, in the circumstances
of these particular grievances a period of some fifty-five hours
between the conclusion of the first shift schedule and the
commencement of the succeeding one. In short, on the plain
language of article 10.3 we are satisfied that these two grievors
were not "required to work before twelve hours had elapsed" from
the completion of their prior shift. Put somewhat differently,
nowhere in the language of article 10.3 is there any expression
of the parties' intention that the period of time embraced in an
employee's scheduled days off or during an employee's convalescence
or during a holiday period is to be excluded from the calculation
of the twelve hour "turnaround" period described in article
10.3. Very simply where the parties, (or perhaps,more properly,
as the union suggested the Board of Arbitration) have themselves
failed to exclude such periods from the provisions of article
10.3 by the use of such expressions as "exclusive of", or "not
including" an employee's "scheduled days off" or "days of illness"
5.
it is beyond the function, competence and jurisdiction of this
Board to add such a proviso or qualification to the otherwise
plain language of that .provision.
Nor do we believe that the interpretation we have
placed on article 10.3 is in any way affected by the provisions
of article 8.1 of the agreement. That article provides:
There shall be two (2) consecutive
days off which shall be referred to as
scheduled days off, except that days off
may be non-consecutive if agreed upon
between the employee and the Employer.
It was the position of the union that when read together with
article 10.3, article 8.1 mandates the result that was sought
in these two grievances. More specifically, it was the union's
po,sition, as noted in paragraphs 7 and 8 of the agreed statement
of facts, that if effect were to be given to both articles
8.1 and 10.3, then an employee who had two scheduled days off
between a change in his scheduled shifts would be entitled both
to the forty-eight hour period described in s. 8.1 and the twelve
hour period guaranteed in article 10.3. Taken cumulatively or
additively required, in the union's view, that such employees
would be entitled, in such circumstances, to sixty hours between
the completion of their last shift and the commencement of their
next one.
Again, in our view, there is nothing in the language
of either articles S.1 or 10.3 or indeed in any provision of the
agreement which supports such a conclusion. Put simply, on the
facts of the grievances before us there is nothing to suggest
that the provisions of article 8.1 have not been complied with.
-
6.
To the contrary and as paragraph 7 of the agreed statement of
fact itself concedes, these grievors were in fact granted
something in excess of the forty-eight hour period that is the
maximum period of time that is described in article 8.1. In
that sense, as in the case of article 10.3, it can not be said
that, standing alone, this provision was offended by the change
of shift schedules that was effected by the employer in this
case. Put somewhat differently there is, on the face of
article 8.1,nothing which would suggest that in addition to their
scheduled days off these employees would be entitled to the
"turnaround" time described in article 10.3. Put at its simplest,
in describinga "day off" article 8.1 does not, on its face, purport
to describe something other than a period of twenty-four hours
however that period may be calculated.
However, and while itis true that analysed independently
it may be said that the employer did not offend the substantive
provisions of article 8.1 and 10.3 it was the union's position
that these employees were denied the right to receive the cumulative
or additive benefit of these two provisions. That is to say, and
this is the gravamen of the union's complaint, in scheduling their
shift change as described in the agreed statement of facts, the
employer did not provide these employees, in addition to their
scheduled days off, with. the "turnaround" period that is described
in article 10.3. In our view, however, and the union's argument
notwithstanding, there is nothing in the agreement which would
require the employer to do so. To the contrary in our view neither
neithera literal nor a purposive reading of articles 8.1
and 10.3 suggests or supports the finding that the benefits
provided therein are so interdependent in nature and cumulative
in effect. With respect to former mode of analyses, we have
already in this award explained our conclusions that there is
simply no indication on the express language of article 10.3
that the period of time an employee spends on his days off or
convalescing from some infirmity can not be utilized to'satisfy
the provisions of that article. Moreover when one considers what
we believe to be the clear purpose of article 10.3 we are
confirmed that no such limitation can reasonably be implied
from its terms. That is,in our view the twelve hour "turnaround"
clause is clearly designed to provide an employee who is required
to work on a rotating shift basis with a minimum period of
time (twelve hours) within whichever he may rest, refresh and/or
amuse himself as he sees fit. That is to say the twelve hour
turnaround clause is premised on the shared recognition 'that it
is in the interests of an employee's health, safety and morale
that a minimum period Of time separate the two working periods during
which an employee may do as he pleases. Thus, in the event that he
is not permitted such a respite from the work place, the employer is,
by article 10.3, required to remunerate him at a premium rate so as
to compensate him for having to forego some portion of that release
time from the work routine which would normally be associated with a
change of shift schedules and which otherwise would be regarded as
a standard feature of a normal or regular working day. However,
8.
where, as in the instant case, an employee's shift schedule is
separated by one or two scheduled days of rest, the very purpose
of article 10.3 has been satisfied and the reason for requiring
the employer to pay the premium rate is no longer operative. Very
simply, in such circumstances the employee will, by definition
have been able to enjoy a period of time well in excess of the
"turnaround" period described in article 10.3 within which he can
relax, sleep and amuse himself in whatever manner he so desires.
In short and having been able to enjoy the very benefits that
are implicit in the "turnaround" period that is guaranteed by
article IO.3 by having a day off scheduled between his change
of shifts, it would,in our view,be duplicative and wholly redundant,
in the absence of clear language to the contrary, to require
the employer to grant each employee such a period in addition to
that implicit in his or her days of rest.
Put at its simplest then we are of the view that the
cumulative or additive relationship that the union asserts exists
between articles 10.3 and 8.1 is not supported either by the
language or the purposes~ of those provisions. Nor do we accept
the union's argument that those two provisions must be so
construed, if, as the parties intended, persons who are required
to work rotating shift schedules are to be compensated in time
and money where their working conditions materially differ from
those who work a regular day shift. In the first place, we would
note, as the union itself conceded, that in the context of many
9:
shift changes an employee will in fact be off work for a period
well in excess of sixty hours. Accordingly and even if one
accepted the union's assertion as to the parties'intention to
attempt to equalize the working conditions of these two groups
of employees, it is conceded that on average these persons will
in fact have as much, if not more, time off between changes in
shifts which are separated by two consecutive days off as day
workers do when they enjoy a regular weekend. In short, and
even accepting the union's assertion as to the parties' intention
in including article 10.3 in the agreement the interpretation
advanced by the employer and accepted by this Board, could, on
average at least, give effect to that intention. In addition
and as we have noted earlier, such an interpretation as to the
interrelationship of articles 8.1 and 20.3 would, in the circum-
stances where there were scheduled days off intervening between
the change of shifts, frustrate and be at cross purposes with the
more fundamental premise that we believe underlies a provision
such as article 10.3. In the result and where, viewed reasonably,
these two provisions can be construed as being independent and
mutually exclusive, we must conclude that the employer did not
violate article 10.3 when it did not, in the circumstances of
this particular shift change, provide the employees an
additional twelve hour "turnaround" after those employees had already
enjoyed their scheduled days off. Accordingly and for the reasons
10.
given these grievances must be denied.
Dated at Toronto this 17th day of February lg77.
D. 1% Beatty
Cilairman
I concur
G. K. Griffin
Ejlemb e r
I COIIC".r
H. E. Neisbach
Member