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HomeMy WebLinkAbout1977-0074.Morin.78-05-0474/77 CROWN EMPLOYEES~ 4!6/964 6426 GRIEVANCE SETTLEMENT . BOAR~J ! Bebeen: Before: St&e 405 77 Bloor Street Vest Tmotm. Ontario MS.5 lM2- _ JN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES "0~;;;;;"' BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Mr. T. Horin.. - and - '. *-. Ministry of the Environment Professor G. W. Adams Chairman Mrs. Mary'Gibb Member Mr. S. R..Hennessy Member For the Grievor Mr. George Richards, Ontario 'Public Service Employees Union _ For the Employer Ms. Dianne Nagel Staff Relations Officer Civil Service Corunission Toronto, Ontario Hearing Suite 405, 77 Gloor St. W. Toronto, Ontario February IOth, 1978 , . -l- In this case the parties stipulated the followino facts. The prievor worked ona regular cyclical rotatino shift basis at the Sewage Treatment Project, Sudbury. A copy of the shift scheduled was introduced into evidence and the parties agreed that it had~been posted in accordance with Article 10.1 and was not chanped. During :the time period in ouestibn. the grievor, Mr. Morin, was scheduled to work onthe following basis: Thursday, March 10. 1977 - 4 p.m. to 12 midnight Friday, March 11, 1977 - Regular Day Off Saturday, March 12, 1977 - Regular Day Off Sunday, March 13, 1977 - Regular Day Off '-~ .~ Monday, March 14, 1977 -.4 p.m. to 12 Midnight ~. On Sunday, March 13.,~Mr. Rorin was contacted at his home and asked if he would be willing to return to work to perform overtime because of the possibility of flooding due to hiph waters. Mr. Morin _. acceded .to-thereouest and .reported ,for,work at 11 p;m.;+lar+ch 13. . and completed the work at 6:30 a.m. on March 14. For this work, Mr. Morin received compensation at the rate of 1% times the 7% hours worked, in accordance with Article 11 and 16. He then returned to work to commence his scheduled shift - 4 p.m. to ~12 midnight, March 14, for which he received compensation at straight time for the 8 hours worked. . The parties defined the issue before the Board to be whether the collective agreement reouires that the crievor be paid at the rate of time and one-half for those hours worked that fell within , f 12 hours of the completion of the overtime worked (that is. from 1600 hours to 183D,hours, 2% hours, on March 14, 1977). It was noted that on regularly scheduled shifts, only one operator is on duty at the project and the hours of the regularly - . scheduled shifts for Saturday, March 12, 1977 and Sunday March 13, 1977 were as.follows: 8 a.m. March 12 - 8 p.m. March 12 8 p.m. March 12 - 8 a.m. March 13 8 a.m. March 13 - 8 p.m. March 13 8 p.m. March 13 - 8 a.m. March 14 .* .(I- .However due to the emergency situation which had arisen at the time (i.e. the possibility of floodino due to-hioh waters) three other operators (including Morin) were assigned to the project on Sunday March 13 to perform overtime work and, according to the ' ' employer, they were scheduled to work in the following manner: _ Dickson - 8 a.m:March 13 - 4 p.m. March 13 . Golden - 4 p.m. March 13 - 12 Midnight March 13 Morin - 11 p.m. March 13 - 6:30 a.m. March 14 No one replaced Mr. Morin as the second operator at 6:30 a.m. March 14 because the possibility of flooding had subsided by that time. . Subseouent to the hearing the trade union advised the Board I that, in fact, Dickson worked until 3:30 p.m.; Golden worked from that time until 11:00 p.m. and Morin worked from 11:OO p.m. until 6:30 a.m. The relevant provisions of the collective agreement include: Article 7 - Rours of Work 1 7.1 Schedule 3 and 3.7 The normal hours of work for employees on thfs schedule shall be thirty-six and one-quarter ,(36&J hours per week and seven and one-quarter (7k) hours par day. 7.2 Schedule4 and 4.7 Thenonml lwursofwork for employees on this schsdtzle shall be forty (40) hours p?r week and eight hours per day. 7.3 Schedule 6 G The normal hours of work for employees on this schedule shall be a minimum of thirty-sir and one quarter (361r) hours per week. Article 6 nays Off 6.1 There shall ba (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be Mn- consecutive~ff aqreed up between the employee a$ $!ie Employer. Arti de ‘9 -.Tou.r of Duty 9.1 A sNft whi&.does not.comence and endon a calendarday shall be cdhsidered as fallinq wholly within the calendar day on which the shift comwnces. I\ Article 10 - sh.fftschedu.zes ‘10.1 The ~Zmployeraqreaa to post shift schedules not les8., & fifteen. (15) days in advance and there ehal.I be -. -^ .- no chanqe in the schedule after it has been postad . unless notice is qfven to the employee seventy-tro .(72) hours fmadvance of the starting time of tha shift as orfqfnally scheduled. If the employee concerned is not notified seventy-We (72) hours in advance he shall be paid time and one-half (l&J for thefirst eight (6) hours worked on the chanqed shift provided that no premfum shall be paid where the change of schedule is caused by events beyond the Employer’s control. -a- 10.2 Shifts mey be changed if agreed between the employees and the employer without any premium or penalty. 10.3 The Employer shall make every reasonable effort to avofd scheduling the commencement of a sNftwitNn twelve (12) hours of the completion of the employee*.9 previous shift provided however, that if an employee is required to mrk before twelve (12) hours have elapsed he shall be paid time and one-half (l&J for these hoUrS that fall within the twelve (12) hour period. 10.4 It is the fnte>t of the parties that there shall be no split shifts provided however, that in circumstances where split shifts are currently in existence the Employer shall make reasonable efforts to eliminate the split sNfts. 10.5 The Employer agrees to maintain the current practice of giving notice of shift schedules in advance under exfstfng agreements where notice is in excess of fifteen (151 days. Article 11 Call Back : *:. . 11.1 An employee who leaves Ns place of work and is mzbsegu&nt.ly~called back to work prior to tbe.starting time of Ns next scheduled shift shall be paid a minimum of four (4) hours pay at time +d one-half (1%). Article 13 ~SNft Premium 13.1 m employee shall receive a sNft premium of sixteen cents (166) psr hour for all hours worked between five(5tOOlp.m. and seven (7:OO)a.m. Where more than .;--.T~, fifty percent (50%) of the hours fall within this periodthe : premium shall be paid.for all hours worked. _ 13.2 Any premium to which an employee may be entitled shall be calculated on the employee's basic hourly rates exclusive of shift premium axId there shall be no pyramiding or duplication of premium payments or compensating leave nor shall the samehoursbe countedas part of the workweek and also as hours for which an overtime or holiday premium is applicable. Article 16 OVERTIME 16.1 GENERAL Authorized work‘ performed on an employee's scheduled ' day(s) off shall be considered as overtime. :.z. ..: i, \’ . . I Article 17 Solfday Payment 17.6 There shall be no duplication or pyramiding of overtime payment or compeneeting leave nor shall the same hours mrked be counted as part of the vmrk week and also as hours for which an overtime or holiday premium is applicable.. The union argued that the plain words of Article 10.3 required the employer to ppy Mr. Morin time and one half for those hours of his regularly scheduled shift on Monday March 14 falling ; within the 12 hour period subsequent to the completion of.his overtime work that.comnenced on Sunday March 13. Fcr.~ Richards submitted that no duplication or pyramiding of premium payments was involved in that Mr. Morin was not asking that different premium . * .- . . rates be applied.to the same hours. Rather It was his position that while the employer had complied with the reouirements of Article 16.1 and Artfcle 11 in relation to the hoursthe prievor . had worked,between 1l:OO'p.m. March 13 and 6:30 a.m. March 14, it ,, had failed to pay him properly for the first two hours of his regularly scheduled, shift~on March 14 in accord with Article 10.3;-~'~' Thus; because the grievor was not asking that premium rates be S paid more than once for the same hours worked,.the union submitted the arbitral aversion to the pyramiding of premium rates had no application. See Re Weston. Bakeries Ltd. (19741, 7 L.A.C. (2d) 269 (O'Shea). The union submitted that where the parties intended hours paid for at premium rates to be ignored for the calculation of other premium rates they had done so expressly as evidenced by paragraphs 13.2 and 17.6. It submitted that no such aualifying provision -6- had been negotiated with respect to the paragraph 10.3 premium. Lastly, the union emphasized the different purposes of paragraph 10.3 and paragraphs 16:l and 11 payments. It was argued that each provision was based upon a distinct purpose and thus the Board should prefer one provisiot over another only where the parties spedifically provided that one purpose or one provision should prevail. The union submitted that in the facts at hand the employee should be compen- sated both for having worked on a scheduled day off or for havino been called in before his next scheduled shift (here the prohibition against pyramiding did limit the grievor to one or the other payments under Article 11 and paragraph 16.l),and for having to.c&ience a'shift with less than 12 hours having elapsed since the completion of a previous shift. The employer took the position that any interpretation of paragraph 10.3 must have regard to the content of the entire article in which it isfound: It was its submission that Article 10 speaks . to the scheduling of regular shifts and that therefore the~word "shift" used in paragraph 10.3 must mean "regularly scheduled shift" which the overtime hours worked by Morin, prior to his repularly scheduled shift on Monday March 14, were not. Embellishinp this argument the employer's representative argued that overtime hours cannot constitute a shift within the meaning of paragraph 10.3 in that a shift refers to the scheduling of regular hours of work and overtime, by definition, is always in excess of such normal or regular hours of work. She reasoned that if overtime hours could constitute a shift then overtime would have to be posted in accord with paragraph 10.1 and that such posting of overtime -7- hours is usually not possible because the need for overtime work arises unexpectedly. The Board's attention was also drawn to paragraph 10.4 which speaks of split shifts to fortify the argument that use of the term "shift" throughout Article 10 is a reference to regular hours of work. The employer advised the Board that to interpret paragraph 10.3 as the union reouests would have serious ramifications for the employer because all overtime work would have to be completed 12 hours before an employee's next scheduled shift to avoid the additional pay- ment under paragraph 10.3. For example any overtime scheduled in'nnediately before the next scheduled shift would, the employer suggests, force it to pay time and one half for all the hours worked by the employee on his regularly scheduled shfft.~ Indeed, the employer aroued that almost all call-back situations would trigger paragraph 10.3 in that only 4 of the 16 hours between an employee's regularly scheduled shifts could~ fali I, ,, outside the 12 hour period stipulated by paragraph 10.3. .: Taking the union's positfon to its extreme. the employer:, submitted, would mean that Article 11 world never have any.applfcation because all overtime would be a "scheduled shift" and thus an employee could never be called back prior to "a scheduled shift". Leaving the wording of Article 10 and taking a somewhat broader view, the employer argued that it was entitled to forty hours of work from the grievor at straight time and only the clearest of , -a- language could restrict this entitlement. It noted that only a few restrictions did in fact exist i.e. Articles 13 (shift premiums) and 17 (holiday payment). Finally the employer submitted that even if the union's interpretation was correct paragraph 13.2 prevented Morfn from receiving any further premium pay ada result of having worked premium hours prior to his regularly scheduled shift on Monday, March 14. It was suggested that to pay Morin as he requests would result in a "duplicatfon" of payments or a "pyramiding" of premiums as those terms have been defined by arbitrators. And in this latter regard the Board was referred to RA ~evei Detergents Ltd. (1972) 24 LA.C. 396 (&aChJ-and the cases cited below., We are of the view that the disposition of this grievance depends solely upon the meaning to be attributed to the word "shift" I,~ .as that word Is used in the phrase "the employee's previous shift" found in ~paragraph 10.3. . If the hours worked by Morin can properly be characterized as a shift within the meaning of this provision then the grievance must succeed. In our opinion a resulting payment for the 2% hours in question would not offend para- graph 13.2. This Board understands the phrase "pyramiding or duplication of premium payments" to mean the payment of similar premium rates more than once for the =.hours worked and not the triggering of. -9- two separate 'provisions where the premium payments are to be made in relation to different hours off work. Contrast ~8 weston &keries std. (1974), 7 L.A.C. (Zd) 326 (Bra@; Re Lever DetergeMs Ltd. (1972L 24 L.A.C. 396 (Brcwn); Re Glenparry County Soard of~Sducetfon 11972) 24 L.A.C. 235 (Palmsr)f Re Ault Milk Prvducte Ltd. (19621, 12 L.A.C. 279 (Anderson); Re Pent Valley Bakeries (19661, 17 L.A.C. 380 (Curtisl with 1 Re General Bakeries Ltd. (19731, 3 L.A.C. f2dl 119 (O'Shealr Re Borden '! Chemical Co. (Canada) Ltd. (19731, 3 L.A.C. (2d) 383 (Weatherillli g Canada Packers Ltd. (19741, 9 L.A.C. (2d) 11 (Weathe~illl; Re Texaco Canada Ltd. (1975), lo L.A.C. (2d) 221 (Shime). The holdings in the latter line of cases give the term 'duplication" or "pyramiding" the more narrow meaning suggested by the union and, as a generaLmatter, conclude that the proper activation of more than one premium provision whether involving common hours or not, will'very often turn on the discrete pur- 'poses to be attributed to the.provisions in issue.. Thus while.it can be said there is a general aversion to the duplication of premium payments for cOm;lbn hours of work, the resolution of particular grievances or, more precisely, the determination of whether an improper duplication of premium payments woyld result may turn on the ~purposes underlying the premium payment provisions under discussion. We note that the parties themselves have recognized the ambiguity associated,with the terms "pyramiding" and "duplication" by going on, in paragraph 13.2, to provide that "the sam hours {shall not> be counted as part of the work'week and also as hours for which an overtime or holiday premium is applicable." This additional phrase prohibits the inclusion of overtime or holiday premium hours into the calculation of the work week and also as hours for which an overtime or holiday premium is applicable. For example it prohibits the inclusion of overtime or holiday premium hours into the calculation of the work week hours for the purposes - 10 - of calculating weekly overtime and is evidence within the article itself, that the more narrow meaning is intended to apply to the terms "pyramiding" and "duplication". In other words by going on to refer to the triggering of two provisions where the stacking of premiums on coamion hours would not be involved, the parties demonstrate a more narrow meaning was intended for the preceding terms. However we believe this latter phrase would not, because of its express wording, preclude the payment requested by the union because the union's interpretation of paragraph 10.3 does not involve the inclusion of premium hours into the calculation of the work week. Returning then to the issue,before the, BFrd,.this grievance depends upon the meaning to be attributed to the word "Shift" found in paragraph 10.3 and contained in the phrase "the employer's previous shift". There are three possible interpretations. The first possibility is that the parties have used the word to refer to any perlod of time that an employee has worked and if this is the correct meaning the grievance must succeed. Mr. Morin began the ove'rtime work on Sunday and he commenced his regularly scheduled shift less than 12 hours after the completion of his overtime work. However we do not think the parties intended such a broad meaning to be attributed to the term shift. In the industrial relations community the term, at a minimum, usually refers to a period of time that would ordinarily constitute a day's work. Thus any period'of work, for example an ad hoc three or four hour overtime ass'ignment, would not constitute a shift within the meaning of the term. But, of course, the parties to a contract can provide otherwise if ,. . - 11 - they wish, although the wording of the agreement.before us suggests the customary meaning is what the parties had in mind. This can be seen from Article 9, entitled Tour of Duty, which describes a shift as a period of time having a predetermined conunencement and ending. And the same approach is adopted in paragraph 17.5. A further indication that the parties intend the term shift to apply~b a predetermined period of time that would ordinarily constitute a day's work is found in Article 15 which provides that "the present practice for rest periods in each shift should be main- tained". Thus even without adverting to the dire financial consequences for the employer in holding that any.overtime assignment constitutes a shift of work within the meaning of paragraph lD.3r-we are satisfied that the parties did not intend this first possible meaning. But we hasten to add our attraction to those cases which 'have held the extension of a shift by overtime hours to be properly part of then shift. see sf~vezwood Dairies Ltd. (1969), 20 L.A.C. 406 (Weatherill) - This bnlngs us to a second possible interpretation - that the term refers to any period of work which prior to.it being worked is . predetermined in length and of a duration that would ordinarily constitute a day's work. Here the union can argue that the second operators were scheduled to work sequentially as one would normally structure shift work and apparently the periods worked were predetermined and in hourly amounts that at least approximate a normal day's work. In effect this interpretation of the term "shift" has it applying to any scheduled period of time where the predetermined hours approximate a normal day's work and this somewhat more restrictive meaning would apply to "regularly scheduled" shifts and "temporary or additional" shifts alike. From this view then, the union could argue that Morin was asked to work an additional, temporary or overtime shift beginning on Sunday, March 13, 1977 and. because ., -12- > paragraph 10.3 makes no dfstinctfon between temporary shifts and regularly scheduled shffts, he was therefore entitled to time and one-half for those hours in his regularly scheduled shift that fell within the twelve hour period prescribed by paragraph 1O;J. And this vfew might be supplemented by~arguing that the purpose of paragraph 10.3 is to compensate an employee any time he is asked to work a shift with less than twelve hours rest following a previous shift. But to evaluate this second possible meanfng'it is necessary to consider the third alternative. The third possible meaning is that the phrase "the employee's .prevfous shift" is a reference to the employee's previously scheduled regular shift as found in the posted shift schedule%ferred'to in paragraph 10.1 which for Mr. Horin was Thursday, March 10, 1977 - 4 p.m. to 12 midnight. If this is soI no shift assigned to Mr. Morfn on Sunday, March 12, 1977 could fall within the twelve hours provided 0 for by paragraph 10.3. This meaning draws its sustenance from the context in which paragraph 10.3 is found. Article 10 is entitled Shift Schedules and by paragraph 10.1 the employer agrees to the post‘ shift schedules "not less than fifteen (15) days in advance" and further agrees that "there shall be no change in the schedule after it has been posted unless notice is given to the employee (72) hours in advance of the starting time of the shift as originally scheduled". . .* ,> - 13 - Subject to an explicit exception made for changes due to events beyond the employer's control, changes that are made with less than seventy-two hours attract time and one-half pay for the first eight hours worked on the changed shift. Clearly then this posting provision has no application to additional or over-time shifts such as the one Mr. Morin worked because the very nature of overtime work-fs usually unforeseeable and because additional work of this kind does not result in a "change in the schedule" as con- templated by the provision in that the employee continues to.work the scheduled hours posted &addition &any overtime shift he may agree on or be asked to work. Given this meaning of paragraph.lQ,?, the third possible meanfng.of paragraph 10.3 better emphasizes the relationship between paragraphs 10.1 and 10.3. According to this view the word "scheduling" in paragraph 10.3 refers to the scheduling of regular or normal work hours provided for in paragraph 10.1 and, this being so, paragraph 10.3 is a ' constraint on the scheduling of regular hours of work and only on the scheduling of regular hours of work. Thus,ff an employee is asked 'W work two regularly scheduled shifts without twelve hours.of rest he is entitled to be paid the premium provided for in paragraph 10.3. Or stated another way, the phrase "the employee's previous~shift" can only be a reference to a previous shift that had.been scheduled within the meaning of paragraph 10.1 and, according to this view, paragraph 10.1 applies only to the scheduling of normal or regular hours of work. 4 fortiori "the employee's previous shift" must be a reference to his previously scheduled regular shift. The Board has carefully reviewed these three possible meanings of paragraph 10.3 and has come to the conclusion that the . ’ 5 .i - 14 - third and last interpretation is the preferable one. We believe it best reflects the oierall scheme of the article in which paragraph 10.3 is found. Accordingly, the grievance is dismissed. . Dated at Toronto this 4th day of May 1978 6. W. Adams, Chairman I concur Mary Gibb, Member -_ I concur S. R. Hennessy, Member