HomeMy WebLinkAbout1978-0165.Robbins.82-06-28IN THE MATTER OF AN ARBITRATION
THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC?
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Lleiville Sohn Robbins)
Before:
and
The Crow? in Right of 3ntario
(klinistry of Transportation and
Com~municationsl
K.?. Swan - ‘.‘ice-Chairman
E. ?AcIntyre - Member
F. Co!lic: - .Yilewber
For the Griever: G. 3ickirds
Grievance.‘Ciassification Officer
&rari,o ?uZ!ic krvice Empicyees Linion
For the Employer: i7.5. Uagel
Senior Sraff Zelations i’fficer
Civil Service Ccm;nkion
Griever
E.mpioyer
Hearm%:
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AWARD
This apparently simple grievance is complicated by
circumstances, and raises difficult questions of both interpretation and
policy relating to the functioning of a statutory tribunal like the Grievance
Settlement Board. The facts on which the grievance is based ‘were the
subject of an agreed statement by the parties in the following terms:
1.
2.
3.
4.
5.
The Grievance Settlement Baard has jurisdiction
in this matters.
The Working Conditions Agreement dated April 26,
1978, between the Crown in Right of Ontario, re-
presented by Management Board of Cabinet, and
the Ontario Public Service Employees Union was
in effect at all times material to this grievance.
The hearing of the board, scheduled for December 8,
1980; is in respect of the following grievances:
Pile ii165178 1M.J. Robbins
204178 McGregor, Armstrong et al
58179 Coffins, Hortin, Rodwefl
12’+/79 Armstrong, Gilbert et al
The grievances scheduled to be heard by the Board
are similar in nature. In each case, the employee
is claiming payment of shift premium (Art. II) in
respect of certain overtime hours worked, either
following or preceding the employee’s normal hours
of work.
In order to expedite the hearing, the parties have
agreed to proceed with the facts of Mr. Robbins
grievance and to apply the decision of the Board to
the facts of the remaining grievances.
The grievor is a Highway Equipment Operator at the
Cochrane District Office (Maintenance Operations
Unit) of the Ministry of Transportation and Commu-
nications. Jn this position, the griever performed
a variety of equipment operation functions, includiig
road surfacing. During the months of April through
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October, the Cochrane District Office generally
conducts its business between the hours of 8~00
A.M. and 5~00 P&i.
6. At the time the grievance was filed, August 28,
1978, the griever’s normal hours of work were 40
hours per week and 8 hours per day. This work
was performed from 8:OO a.m. to 4:30 p.m.,
Monday through Friday.
7. On occasion, the griever was required to perform
overtime work prior to the commencement of and/
or following the completion of his shift:
eg: Date Overtime Worked
Aug 1178 7:OO a.m.-&00 a.m. (3 hrs)(road surfacing)
4:30 p.m.-6:30 p.m.
Aug 2178 7:OO a.m.-&00 a.m. (5 hrs)
4:30 a.m.-&30 p.m.
Aug 4/78 7:OO a.m.-&00 a.m. (4 hrs)
4:30 p.m.-7:30 p.m.
Aug 8178 7:OO a.m.-&00 a.m. (6 hrs)
4:30 p.m.-9:30 p.m.
Aug 18/78 7:OO a.m.-&00 a.m. (5.5 hrs)
4:30 p.m.-9:OO p.m.
These overtime hours were compensated at the rate of
IH times his basic hourly rate, in accordance with
Art. 13 (Overtime).
8. The grievor is claiming entitlement to shift premium
under Article 11 in respect of the overtime hours worked
beyond 5~00 p.m. and before 7:OO a.m. in addition to the
overtime payment made in accMdance with Article 13.
9. The parties have agreed that witnesses will not be
called to give evidence at the hearing.
The grievance is, we were informed, an example of a number of
grievances still outstanding, all relating to the operation of .Article I I of
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the collective agreement. That provision has been in the collective
agreement in-its present form for some time, and is as follows:
ARTICLE II - SHIFT PREMIUM
11.1 An employee shall receive a tit premium of
sixteen cents (16c) per hour for all hours
worked between five 600) p.m. and seven (7~00)
a.m. Where more than fifty percent (50%) of the
hours fall within this period the premium shall be
paid for all hours worked.
11.2 Shift premium shall not be considered as part
of an employee’s basic hourly rate.
11.3 Shift premium shall not be paid to an employee
who for mutually agreed upon reasons works a
shift for which he would otherwise be entitled to a
shift premium.
The difficulty in this this case is that we are not faced with the
construction of this article from first principles; it has already been before
the Board twice for interpretation. It is because of a perceived conflict in
the two awards that the parties have referred it back for another time.
The first of the two disputed awards is Re Cameron and
Ministry of Correctional Services, 124/77, a unanimous decision of a panel
chaired by C.W. Adams, then the Board’s Chairman. The issues before the
Board in that case were agreed by the parties to be:
Does the collective agreement require that the
employer pay:
(a) a shift premium under Article I1 for the same
hours of work for which an overtime premium is
payable under Article 13,
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(b) a shift premium under Article 4 for the same hours
of work for which a statutory holiday premium is
payable under Article 19?
(at page 2). The reference to PIrticle 4 in (b) is apparently a typographical
error for Article II. It appears that the griever in that case worked both
overtime hours and on one or more holidays between the hours of 5 p.m.
and 7 a.m., sometimes in the form of a full additional shift, and at other
times for less than a full shift.
The issues before the ijoard were so framed as to !ead it to a
discussion of “pyramiding”, and in particular the effect on compensation
where nours were worked which fell into the apparent ambit of Article 13
or Article 19. The .Article 19 issue is not here material. For the sake of
easy reference, we shall set out Article 13, insofar as it is necessary for
our discussion:
ARTICLE 13 - OVERTIME
13.1 The overtime rate for the purposes of thii Agree-
ment shall be one and one-half (1%) times the employee’s
basic hourly rate.
13.2 In this Article, “overtime” means an authorized
period of work calculated to the nearest half hour and
performed on a scheduled working day in addition to the
regular working period, or performed on a scheduled
day(s) off.
In Cameron, the award includes a scholarly and thorough
examination of the arbitral jurisprudence on pyramiding, all of which was
discussed in light of Article 21, whicn goes to the heart of the issue:
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ARTICLE 21 - NON-PYRAMIDING OF PREMIUM PAYMENTS
21.1 There shall be no duplication or pyramiding of
any premium payments or compensating leave provided
by this Agreement.
We do not think it necessary to repeat here the processes by
which the Board came to its conclusion in Cameron, but excerpts from that
conclusion are necessary for our discussion of the issues before us. In
particular, the following passage is of note (pp. 25-25):
In the collective agreement before us we have already
noted that Art. 11.2 stipulates that shift premiums
shall not be considered as part of the employee’s basic
hourly rate which is at least some indication that the
parties anticipated the concurrent payment of shift
premiums and overtime or other premiums. The employer
argued that this stipulation could have been for another
purpose not including overtime pay but the provision does
not say this and this “other purpose” was never detailed
in argument. And in the Texaco case where the parties were
very precise in drafting a similar provision they referred
to vacation pay, contributions to employee benefit plans
and overtime premiums. -
Moreover the shift premium provision in the preceding
collective agreement between these parties was reproduced
in the Morin case, 74/77 and appeared in the following
form.
ARTICLE 13 - SHIFT PREMIUM
13.1 An employee shall receive a shift premium of sixteen
cents (16c) per hour for all hours worked between five
(5:OO) p.m. and seven (7~00) a.m. Where more than fifty
percent (50%) of the hours fall within this period the
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 and there shall be no
pyramiding or duplication of premium payments or compen-
sating leave nor shall the same hours be counted as part
of the work week and also as hours for which an overtime
or holiday premium is applicable.
.
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13.3 Shift premium shall not be paid to an employee who
for mutually agreed upon reasons works a shift for which
he would otherwise be entitled to a shift premium.
It can be seen that Art. 13.2 has been considerably
altered. In that article it was abundantly clear that
shift premium was to be paid in addition to other
premiums but the latter premiums were to be calculated
on an employee’s basic hourly rate. And this was so
even though the same provision went on to preclude the
pyramiding or duplication of premium payments. Accord-
ingly at that time the prohibition against the duplica-
tion of premium payments could not have been directed
at the concurrent payment of shift premiums and some
other premium. Do the alterations to this provision
found in the current agreement change this approach to
the payment of shift premium? We do not think so. The
ideas contained in Art. 13.2 of the preceding agreement
now appear’to be found in somewhat shortened form in
Art. 11.2 and Art. 21.1. This change seems to have been
for the purpose of streamlining the agreement and not to
alter fundamentally the payment of shift premium. Surely
if the parties had intended to do that they would have
done so specifically.
The employer also submitted that the reference to a
“shift” in Art. 11.03 is an indication that the hours
for which a shift premium are to be paid must be refer-
able to a specific shit. However, in numerous recent
cases arbitrators have held that overtime hours in
excess of an employee’s shift are referable to that
shift. ,Moreover in Art. 11.1 the premiums are not
expressly related to shifts but rather to %il hours
worked between five (500) p.m. and seven (7:OO) a.m.”
We would also note that Art. 11.3 is identical to Art. 13.3
of the preceding agreement between the parties and 13.2 of
that agreement was very clear that shift premiums and other
premiums could be paid for the same hours. In our view if
the parties had intended to alter this result they would
have done so specifically and not by merely relocating the
ideas contained in Art. 13.2 and expressing them more con-
cisely. We also note that Art. 13.1 of the current agree-
ment makes it clear that overtime is to be paid with
respect to an employee’s basic hourly rate which avoids
some of the computation problems encountered in the earlier
cases (i.e. Silverwood Dairies Ltd. (supra) and this is
again some indication that shift premiums and overtime
can be paid concurrently.
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Thus when all these provisions are combined with the more
recent tendency by arbitrators to view shift premium and
overtime provisions as having quite different purposes,
it is the Board’s view that in agreeing to Art. 21.1 the
parties did not believe the concurrent payment of a
shift premium and overtime pay to involve a duplication
or pyramiding of premium payments. Accordingly the
answer to The first question before the Board is that
the employer is required to pay both a shift premium
and overtime pay where both provisions are applicable.
The Board is of the opinion that the second question must
also be answered affirmatively provided rhe griever is
scheduled to work the number of hours that would normally
constitute a shift. While such a shift would not be a
regularly scheduled shift there is nothing in Art. 11:00
indicating that this must be the case. The employer made
reference to the term shift as it is used in Art. 10 and
submitted that given the nature of Art. 10 the parties
must have intended it to be a reference to regularly
scheduled shifts. The Board, as held in Moiin case
(741771, agrees with this suggested meanmor the
purposes of At-t. 10 but this does not mean the term is
used in a uniform way throughout the agreement. The
term shift .commonly means a fixed period of time
constituting a normal day’s work, although this
definition can be narrowed when the context of its use
requires. In Morin the Board was satisfied that in Art. 10
the parties were referring to regularly scheduled shifts
but we see no reason to impute this limitation in Art. Il.
It would appear at first glance from these excerpts that the
Board in Cameron would have answered the issue before us in favour of the
griever. In our case, the griever is claiming shift premium in respect of
odd hours of overtime tacked on to the beginning or to the end of his
regularly scheduled shift. There is no dispute that he was entitled to
overtime rates for these hours; it is only the applicability of the shift
premium that is disputed. The critical phrase in Cameron, however, is the
following, quored above:
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. ..the employer is required to pay both a shift premium
and overtime pay where both provisions are applicable.
(Emphasis added).
iJe must therefore ask ourselves in each case whether the provisions of
Article I I have been met before payment can be required.
Further discussion of this issue occurred in Re Attwood et aI
and Ministry of Revenue, 179/78, a majority decision written by
J.R.S. Prichard and concurred in by $1. Cibb; X. Cochrane dissented. The
dispute there was identical to the one before us, since the Employer
acknowledged that overtime rates were payable, but disputed the
applicability of the shift premium. In Attwcad, as here, the critical
question is whether Articje II is triggered merely by working any time at
all between the provided hours, or whether something inore is necessary to
invoke the provisi,on. The Attwood award states (pp. 4-5):
The answer to these questions must be found in the
words of Article 11 and the concept of a shift premium.
If Article 11.1 simply stated that “an employee shall
receive a premium of sixteen cents (16c) per hour for
all hours worked between 500 p.m. and 7:00 a.m.“,
there would be no difficulty in deciding this case.
The grievor would clearly be entitled to the premium
in addition to the overtime premium. However, the
language of the agreement is different. It states that
“an employee is entitled to receive a shift premium of
sixteen cents...“. Furthermore, the article itself is
titled “Shift Premium”, again emphasizing that the
oremium attaches to a shift and not simole to hours
worked. The parties must be presumed to give meaning
to aiJ the words used in the collective agreement and
thus we must determine the significance of the inclusion
of the work~“shift” in Article 11.1. Therefore, the
resolution of?Ii6$ievance turns on whether the griever’s
“shift” extended to the period between 5:00 p.m. and 7:00
a.m., thus entitling him to the shift premium.
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The Board then went on to consider certain cases cited both to
it and to the Cameron panel, and continued (pp. 5-6):
In her submissions, the employer’s representative
referred us to three cases in addition to Re Cameron:
Re Hydro-Electric Power Commission of Ontario (19661,
18 L.A.C. 43 (Hanrahan); Re Canada Foils Ltd. (1968)
19 L.A.C. 181 (O%ea); Re Hydro-Electric Power Com-
mission of Ontario (19611, I1 L.A.C. 105 (Donley).
Unfortunately none of these cases deals directly with
the issue before us. However, two insights can be
gamed from these cases. First, the cases make clear
that a shift premium is paid to compensate employees
not for beiig required to work beyond the normal hours
required by the agreement, but rather for regularly
beiig required to work those normal hours when many
others are enjoying leisure hours and when most
employees can be presumed to prefer to do likewise.
Indeed, this concept formed the basis for the Board’s
conclusion in Re Cameron that the premiums for overtime
and shift work served different purposes and thus were
not barred by the non-pyramiding clause. Second, the
cases hold that where an employee is required to work
not just an extension of his normal hours but rather a
part or all of another shift, then the extended hours
constitute a shiit in and of themseives. That is, even
though overtime hours are generally thought. of as refer-
able to the scheduled hours worked and therefore as an
extension of the scheduled shift, a different character-
ization must be adopted where the extended hours repre-
sent all or part of a new shift. Thus, in Canada Foils
where the griever was working a day shift plus half an
afternoon shift as a result of the illness of a fellow
employee who would normally be responsible.for the
afternoon shift, the grievor was entitled to the shift
premium for the additional hours worked.
Applying these principles to the case before us, we must
therefore find that the grievor is not entitled to the
shift premium in addition to the overtime premium. The
griever’s normal workday of 8:30 a.m. to 4:45 p.m. does
not attract a shift premium since no part of the regular
working day falls between 5:OO p.m. and 7:00 a.m. The
overtime hours worked from time to time beyond 5:00 p.m.
are referable to the griever’s normal hours of work.
Furthermore, these overtime hours do not represent part
of another scheduled shit since the Ministry normally
conducts its business between 8:30 a.m. and 4:45 p.m.
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Therefore, the reasoning in Canada Foils cannot be
applied to assist the griever’s case. In the result,
the overtime hours do not attract a shit premium in
thii case. The grievor is not beiig regularly
required to work his normal hours at a time other
than the usuaf working hours and thus the raison
d’etre for activating the shift premium pros
is present in this case.
In reaching this conclusion we are not unaware of
certain language in Re Cameron which might suggest
a different result and which may have given the
Union reason to believe that this grievance stood
a good chance of success. In particular, in that
case the Board said at page 27:
The employer also submitted that the
reference to a Wtift” in Art. 11.03
is an indication that the hours for
which a shift premium are to be paid
must be referable to a specific shift.
However, in numerous recent cases
arbitrators have held that overtime
hours in excess of an employees
shit -are referable to that shit.
Moreover in Art. 11.1 the premiums
are not expressly related to shifts
but rather to “all hours worked
between five WIO) p.m. and seven
(7:OO) a.m. (Emphasis added).
The particular language used by the Board in that decision
may have been unfortunate in that read out of context it
might be taken as supporting the proposition that any hours
worked between 5~00 p.m. and 7~00 a.m. attract a shift
premium. However, read in the context of the Cameron case,
the true meaning of the quoted portion of the decision can
be found. The Board was holding that where the overtime
hours worked at the end of a shift which, by virtue of the
starting and ending points of the shift already attracted a
shift premium, fell within 500 p.m. and 7~00 a.m., they
also attracted the shift premium. That is, the mere fact
that the hours were beyond the duration of the normally
scheduled shift did not insulate them from attracting the
shift premium where the overtime hours were referable to a
shift which already attracted a shift premium. Thus, the
inclusion by the Board of “all hours worked between...”
did not decide the issue before us which raises the
5, I
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problem of overtime hours falling between 590 p.m.
and 7:00 a.m. but referable to a shift which does
not attract a shift premium. The Board in Re
Cameron did not face the issue facing us antthus
it would be improper to take particular sentences
of that decision as determinative of the isue
before us. It is regrettable If the Cameron case
falsely raised expectations in this regard.
In conclusion, therefore, we find that the griever is
not entitled to the shlft premium for those hours
worked between 5:00 p.m. and 7~00 a.m. as they
neither are referable to a shift which attracts a
shift premium nor do they constitute a shift In and
of themselves. The grievance is therefore dismissed.
Furthermore, the twelve other identical grievances
filed with the Board are, pursuant to the agreement
of the parties, also dismissed.
It will be clear that the acard as constituted in Attwood ;vould
find our present case in favour of the Employer, and would also assert that,
properly understood, the Cameron award would support such a finding.
The two cases, read together, produce some anomalous results.
It will be seen that the reason why the griever in Cameron is entitled to
shift preinium for overtime hours is either because he was on a four-day ’
work week on 12 hour scheduled shifts that continued beyond 5 p.m., or
because work at his establishment was scheduled on a three-shift basis;
both of these “triggers” are suggested in Attwood as possible justifications,
the first expressly referred to Cameron and the second in the discussion of
Canada Foils. The factors relied on in Attwood which are common to the
statement of facrs in our case are that the griever’s own shift ended before
5:00 p.m. and that at the time there ‘was no other shift extending beyond
5:00 p.m. to which the overtime hours could be referred.
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It would therefore appear that, based on the two awards,
various bargaining unit employees working the same overtime hours
between 5200 p.m. and 7:00 p.m. might receive or not receive shift
premium, and perhaps for differing reaso’ns, depending on various
combinations of circumstances. Someone in the griever’s position, on 8:OO
a.m. to 4:30 p.m. shifts in an establishment with no evening or night shifts,
would not receive it, as in Attwood; someone on 12 hour shifts extending
past j:OO p.m. in an establishment on three-shift operation would receive
it, as in Cameron. It appears that someone on I2 hour (or even shorter)
shifts extending past 5 p.m. might receive it even in a one-shift operation,
or that even someone on a shift ending before 5:00 p.m. in a multiple shift
operation would receive it, if the’justifications set out in Attwood are
taken literally. If so, since the parties are careful to point out in the
agreed statement of facts that the Cochrane office operates on one shift.
oniy from April to October, and we surmise that multiple shift operation is
used in the winter, it may be that our griever, Mr. Sobbins, could receive
shift premium for an overtime hour in December that would not attract the
payment in July.
This is a single collective agreement designed to provide for
system-wide working conditions across all categories of the bargaining
unit. While the Board’s cases are not entirely free of anomalous results,
this situation seems so capricious that it hardly seems possible that the
parties could have intended any such outcome.
1
I
‘i
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Having come to tnis conclusion, we must now face how, and
whether, :ve should rectify the situation. The Employer asks us to find
Attwwd binding on us; the Union asks us to find Attwood wrong. In this
case, because of the Board’s often-stated policy on reviewing its own
decisions, we would have to find either or both prior awards “manifestly
wrong” before we would decline to follow them: ‘Re Bateman, 2/77. The
Vice-Chairman presiding over this panel, at least, doubts that he would
have decided either of the cases discussed above in the same way were
they before him on first impression, but mere theoretical disagreement is
not sufficient to justify a decision not to follow a carefully reasoned
decision of another panel. If the Board did not take sucn a position, the
statutory requirement in s. 19 of The Crown Employees Collective
Bargaining Act that the Board’s decision be “final and binding upon the
parties and the empioyees covered by the agreement” would become
inoperative, and the parties could bring disputed interpretations to the
Board over and over again.
We note, for the purpose of disapproving of it, an attempt in
the alternative by the Union to distinguish the present case on its facts
from Athvood. We have already noted that the material facts in the two
cases appear to us to be identical; the Union’s position is based on facts
asserted by counsel but not included in the agreed statement nor proved in
evidence. In the face of an agreed statement, we cannot take notice of
additional facts nor accept. assertions as evidence, and we are therefore
required to treat the two cases as materially identical. If we are to
.
‘i,
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depart from Attwood, there is no easy escape; we must find the decision to
be manifestly wrong.
This, after much agonized consideration, we are not prepared to
do. The result of the two cases read together is certainly anomalous, but
that is partly due to the fact that the language chosen by the parties to
express their agreement is less than a model of clarity, and oniy partly due
to the fact that the aoard, in wrestling with the language and constrained
by its limitations, has been unable to produce a construction which presents
perfect symmetry. On any reasonable test of manifest wrongness, Attwood
must survive. Its application produces anomalies, but not absurdity or
impossibility. Because of the vagueness of the language, the construction
is not one which it cannot reasonably bear. While the language must be
read with words, added to express clearly and unambiguously the sense
given to it by the majority, as Mr. Cochrane’s dissent observes, the word
“shift” must be deleted to express clearly and unambiguousiy the opposite
meaning, as the excerpt from the majority award quoted above suggests.
Whiie we do not necessary agree with the outcome, therefore,
we think that the integrity of the Board’s process requires us to refuse to
“reverse” Attwood or, for that matter, Cameron. The parties are not
without a remedy, of course. They may re-negotiate the language to
expressiy clearly any other result which they wish to produce. In the
meantime, Attwaod remains the binding interpretation of Article II, and
the present grievance is accordingly dismissed.
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DATED at Toronto this 2Sth day of June, 1982.
i7.P Swan Vice Chairman
“I dissent” (See attached)
\iemoer
F.T. Csllic? Liember
/lb
DISSENT
I must disagree with the conclusion made by the majority
that the Attwood decision must be followed. In my view, the
strained interpretation placed on Article 11 by the Attwood
Board is not one that it can reasonably bear. I concur with
the dissentingopinioninthatcase. Further, the anomalous results
that follow from an application of that decision to various fact
situations make it manifestly wrong. The majority in this
case states that:
!,
. . . this situation seems so capricious that
it hardly seems possible that the parties could
have intended any such outcome."
That in my view is an appropriate standard on which to conclude
that the Attwood decision meets the "manifestly wrong" test set
out in re Bateman.
June 18th. 1982
Member of the Board