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HomeMy WebLinkAbout1977-0057.Conlogue.77-11-164 4. .m, Ontario 57/77 CROWN EMPLOYEES 416/964 6426 Suite 405 GRIEVANCE SETTLEMEN.T 77 Bloor Street !&St BOARD TORONTO, Ontario M5S lM2 IN THE MATTER OF ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: Ms. L. Conlogue And Workmen's Compensation Board K. P. Swan Vice-Chairman Andre Fortier Member Dan Anderson Member Mr. G. Jones, National Representative Workmen's Compensation Board, CUPE 15 Gervais Drive Don Mills Ontario For the Employer: Mr. J. G. Betts, Executive Director Human Resources Branch Workmen's Compensation Board Toronto, Ontario Hearing: May 24, 1977 Suite 405 77 Bloor Street West Toronto, Ontario 2. The parties were able to provide the Board with an agreed statement of facts in this matter, which was supplemented by oral evi- dence. The matter arises from a grievance filed on October 18, 1976 by Mrs. L. Conlogue, R.N., as union steward, on behalf of herself and a number of other employees. The grievance related to the posting on October 1, 1976, of the following notice (Exhibit 1, p.9): HOSPITAL PERSONNEL LEAVING THE CENTRE PREMISES DURING MEAL BREAK Normal Work Days a) Day Shift - Hospital personnel may leave the Centre premises during regulation lunch break. b) Evening Shift'- Hospital Personnel to remain on the Centre premises during their shift. Cl Night Shift - Hospital Personnel to remain on the Centre premises during their shift. Statutory Holiday, Saturday, Sunday Hospital ,personnel to remain on the Centre premises during their shift. Hospital personnel will include Registered Nurses, Registered Nursing Assitants, Nurses’ Aides and Orderlies. The Union's position is that this notice violates Article 7.4 of the Collective Agreement then effective between the parties, and the Union requests full compensation of wages and benefits for all time spent "on call" (the Union's expression) from October 1, 1976 and immediate re-institution of the local practice concerning hours of work, lunch break and rest periods in effect before that date. The disputed clause of the agreement is as follows: Hospital and Rehabilitation Centre The local practices concerning hours of work, lunch and rest periods presently in effect for employees at this location will continue in effect for the duration of this Agreement subject to'any changes made~by mutual agreement. 3. This matter thus involves'the determination of the "local practices . ..presently in effect" at the effective date of the collective agreement, and a determination as to what, if any, alterations had properly been made to these practices "by mutual agree- ment". We must therefore look at the history of the present dispute, which really begins in 1972. On July 5, 1972 a memorandum from Dr. B.H.G. Curry, the Director of the Hospital and Rehabilitation Centre, to Mrs. Patricia Judge (then Miss Tiffney), the Director of Nurses (her present title), set out the former's views on the issue of the presence of nursing staff on the Centre premises during meal breaks (Exhibit 6): The second aspect of this subject concerned the duty nurse leaving the Centre for meals. During the day there is adequate staff to permit a nui-.se to go home for meals if she wishes. However, on evening and night shifts there would not be adequate nursing staff if one were to leave the property. Therefore, on evening and night shifts the nur.se would be required to remain in the Centre at all times and hence available for any nursing service required. There was apparently some discontent about this policy, which eventually centred around a notice posted on September 18, 1973 by Mrs. Judge (not in evi- dence before us). Ultimately, a new directive was issued by Dr. Curry on November 9, 1973 (Exhibit 4) in the following terms: \ staff Leavinq the Property During Duty As discussed, I am prepared to modify my previous views on Nursing Staff leaving the property during their shift. This 4. change is possible as it has been pointed out that there are very few patients on the property during certain shifts. Naturally, patient care is a primary responsibility, end si-&ld circumstances change, local decisions will be required and may modify the instructions below: 1) Normal Work Days: a) Day Shift - may leave property during regulation lunch break. bJ Evening Shift - staff to remain on property during shift. Cl Night Shift - staff to remein on property during shift. 21 Statutory Holiday, Saturday & Sunday: 4 Day Shift - two of staff, 1 graduate nurse and 1 other, may leave property during regulation lunch break. b) Evening Shift - two of staff, 1 qrad- uate nurse end 1 other, may leave property during regulation supper break. Cl Night Shift - staff to remain on property during shift. Item 2) will depend upon the number of patients actually in the Hospital Section, and the Nurse inCharge will be responsible as to whom may leave, to ensure that this benefit is evenly distributed to staff who may wish it. The above may apply immediately. No further written documentation occurs until April 27, 1976, when Mrs. Judge posted a notice setting out a new shift rotation proposal and asking for comments from nurses. The document was handwritten, and included the phrases "I won't move on anything unless I have a concensus (sic)," "You may - not be able to leave the premises to cover for supper" and "If I don't hear from anyone I'll assume you have no strong I i i 5. objections and I'll start it in June." This new system was in fact implemented on May 22, 1976. During the summer following the change of shift rotations, there was apparently a difference, between employees and supervision, as to the interpretation of the policy in respect of leaving the hospital premises during meal breaks. The.discovery by Mrs. Judge and her assistant that some nurses were leaving Centre premises during meal breaks other than in accordance with their understanding of the policy led to the notice of October 1, 1976 which subsequently produced the present grievance. From the written evidence available to us, therefore, it would seem that the employer's stated policy on whether nursing staff could leave the Centre during meal breaks could be summarized as follows: 1. From November 9, 1973: Normal Week Days: a) Day Shift - Yes b) -Evening Shift - No c) Night Shift - No Statutory Holiday, Saturdays and Sundays: a) Day Shift - Yes 1 Grad. Nurse & 1 other) b) Evening Shift - I Yes as above) c) Night Shift - No (Subject to the discretion of the charge nurse.) 2. From May 22, 1976: The above schedule would remain in effect, subject to the amendment that "You may not be able to leave the premises to cover for supper," the effect of which will be discussed below. . . 6. 3. From October 1,,1976: Normal Week Days: a) Day Shift - Yes b) Evening Shift - No c) Night Shift - No Statutory Holidays, Saturdays and Sundays a) Day Shift - b) Evening Shift - l: c) Night Shift - No There was, however, some oral evidence which dealt with these same matters, and we shall set out our findings in respect of that before turning finally to the effect of the collective agreement provision (Article 7.4) which bears on this question. First, there was some dispute as to the extent to which the notice of November 9, 1973 was cormnunicated to the employees. Mrs. Judge states that it was posted on several occasions; her assistant,'Mrs. McDermott, confirms that it was posted and says that a copy was in the Nurses' Manual (a collection of directives available to all nurses) until it was replaced by the October 1, 1976 notice. Mrs. Conlogue states that her view of the practice was that employees were free to leave on meal breaks on weekends, and also on the evening shift during the week "for special reasons". Irma Lengyel, a Registered Nursing Assistant, can recall asking for permission to leave (apparently during an evening shift) and being told that the policy only applied to Registered Nurses and that she was free to go. Irmgard Schmidt also felt free to go home during meal hours. Both Mrs. Judge and Mrs. McDermott recall specific 7. requests by employees to leave, but are convinced that permis- sion was refused. It is not necessary, as we see the evidence, for us to decide what did or did not happen on a few occasions. The directive of November 9, 1973 was clear and unambiguous, \ and we are satisfied that its contents were made known to all members of the staff. Whether they "felt free" to leave or not appears to us to be inconsequential if there was no acquiescence by the employer in that feeling, and the very hazy evidence of acquiescence in specific cases, even if we accepted it totally, would only demonstrate exceptions to the established policy and not a totally new policy. We therefore find that, from November 9, 1973 to May 21, 1976, the "local practices" were as set out in the written directive of the former date. It now becomes necessary to refer to the collective agreement itself. The agreement expresses itself to be "made, on the 14th day of July, 1976", but it also states, in Article 24, that it "shall take effect beginning October 3, 1975". The question thus arises as to whether the expression "the local practices.... presently in effect" refer to those opera- tive at the former or the latter date. In our view, the reasonable inference as to the intention of the parties is that the words refer to July 14, 1976, the day of signing the agreement, and that the provision in Article 24 is merely a retroactivity clause extending the effect of the substantive clauses of the agreement to an earlier date. Retroactivity clauses are, of course, a form of fiction, and their effect ought not to be to distort the use of ordinary, easily understood language to make 8. it mean something it clearly does not. Had the parties wished to identify a different date for "presently in effect", they could easily have said "on the effective date of this agreement" or even"as of October.3, 1975". As they have not, it appears to us that the plain meaning of the words they have chosen ought to'stand. What, therefore, was the practice in effect on July 14, 1976? The Employer's position is that the notice of October 1, 1976 sets it out; the union's position is that it was even more liberal than the November 9, 1973 notice. We have already indicated our decision that the 1973 notice still stood as of May 21, 1976. We therefore turn to the effect of the document posted on May 21, 1976. The only words on that document affecting the policy gn leaving the premises are "You may not be able to leave the premises to cover for supper.", What that sentence means will determine whether the rotation change on May 22 effected any alteration in the policy. First, the use of the word "supper" would normally only refer to the evening meal. Second, the document is clearly tentative in tone, and appears to indicate merely that there "may" be occasions when the previous practice would not be possible. The notice of November 9, 1972 clearly con- templates such a possibility when it says that weekend and holiday policy "will depend on the number of patients actually in the Hospital Section, and the Nurse in Charge will be responsible as to whom may leave". Moreover, the evidence as to the discussions which took place about the time of the change-over is confusing, but certainly does not clearly indicate i i,. i;,i . 9. that everyone concerned was clearly made aware that the effect of the'changeover would be to alter the "local practices" to the positions set out in the October 1, 1976 notice. Indeed, it is clear that that notice was necessary because employees had not understood that its provisions were now in effect. In the meantime, of course, the agreement was signed, and froze the "local practices" as they were of that date. It appears to us to be clear that "local practices" in the context o'f all of Article 7, which deals with hours of work, could well include whether an individual employee is absolutely free during a meal period or is subject to some restriction of movement because of some special interests which must be protected. There is very little arbitral jurisprudence on the point, but at least one arbitration award has dealt with break periods on a basis which we consider consistent with our approach: See Re St. Michael's Hospital and International Union of Operating Engineers (19731, 3 L.A.C. (ZD) 443 (Rayner). The parties have clearly chosen to adopt "local practices" rather than to set out specific hours of work to accommodate the rather unique nature of the nursing function, and we consider that it is entirely reasonable that they should have done so. In doing so, however, they must be considered to have frozen those practices as of the date of the agreement. Whether or not before that date the practices could be amended by the employer, after that date "mutual agree- ment" is necessary, and we accept the Union's argument that, in the context of a collective agreement, that means agreement 10. between the two parties to that agreement. Moreover, whether~or not the employer had the unilateral right-to alter the practice on May 22, 1976, and whether or not Mrs. Judge had been authorized to make that alteration on the employer's behalf, we are of the view that no clear alter- ation did take place. As of October 1, 1976, therefore, these employees were required to remain on the employer's premises at times when the local practices frozen by the agreement would have allowed them to leave. To that extent, we allow the grievance, and make,a declaration that the "leca~ practices" set out in Article 7.4 include restrictions on, and freedom in respect of, the right of employees to leave the employer's premises during meals as set out in the letter of November 9, 1973. We appreciate that the ‘employer has been able to reduce staff because of the changed rotation, and that it may be difficult to maintain those reductions in the face of this award if the same standards of patient care are to be maintained. We stress however, that staffing levels and standards of patient care are totally beyond our jurisdiction, but the Board, like the parties, is bound to the words of the collective agreement which the parties have negotiated. Clearly, the answer to the problem which this award will cause is that the parties must negotiate alterations to the local practices which will ensure patient care while protecting, or compensating, the rights of individual employees under the agreement. . ii 11. We turn finally to the matter of.relief in the form of damages. The original grievance asks for "on call" pay for the time spent while improperly required to be on the premises. We can see no justification for this in the collective agreement, which does not mention "on call" pay except in a particularly laconic note on the bottom of the Treatment Salary Scale (which apparently includes the present employees). Moreover, we are not satisfied that "on call" describes the position of nurses who remain on the premises during meals. It strikes us that the parties have negotiated for a package of nursing services, including rotating shifts, varying duties and some requirement simply to be around. The employer has altered that list slightly, in such a way as to offend against the agreement. We do not, however, see any scope in the agreement for determining that some liquidated sum automatically follows from that alteration. According to the evidence, departures from the premises on weekends and holidays were always subject to a number of factors,, including the fact that only one nurse and one assistant could be away at one time, based on the overriding discretion of the charge nurse, the requirements of patient care and safety, and the employee's need and desire to leave. What any one employee has lost by the memorandum of October 1, 1976 is clearly a matter of some uncertainty, and we have not been provided with any evidence upon which we can calculate it. In our view, a full time employee on a standard rotation may be entitled to some modest amount as unliquidated damages for the employer's 12. breach of the collective agreement, if the loss can be demonstrated to fit within the usual rules respecting the recovery of damages, which the Board has set out, for example, in me Noble 6/75 and Re Taynen 9/76. We therefore I remit the matter of damages to the parties for calculation by agreement if possible, retaining jurisdiction over the quantum of damages only in case agreement is not reached. Dated at Toronto this 16th day of November 1977. K. P. Swan Vice-Chairman (I concur) Andre Fortier Member (I concur) Dan Anderson Member