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HomeMy WebLinkAbout1980-0096.Jones.81-11-023efore: ~- I!! THZ YATTER OF .=.N AR3IT.RATION Under .The CROWN EKPLCYEES COLLECTIVE BARGAINING ACT aefore THE GRIZVANCE SETTLEMENT BOARD T. K. Jones Griever - And - The C_rown in Right of antario (Xinistry of Correctional Services) Zmplcyer c. a. %Joiliffe, Q.C. Vice Chainan A. X. XcCLtaig Member X. N. Perrin Xember Fcr the Griever: 3 . ?;sj; A, Grievance Officer Ontario P~klic Service Employees Znio.5 ?cr the Smplcver: J. Xibbs, Regional Dersonnel .X?mi~istiator - Ministry of CorrecCional Services ” i - 2 - S2CISION The issue in this case must be determined primarily by reference to Articles 7.2 and 3-1 in the collective agree- ment between hanagement aoard of Cabinet and Ontario Public Service Employees Vnion. Article 7.2 is as follows: The normal hours aE r&rk for employees cn these schedules shall ice farty (40) hours per week and eight (8) hours pr .d.ay. The griever, Hr. T. 5. Jones: is an officer at the !Gilbrook naximum Security Institution inaintained by the Ministry of Correctional Services. as suc!l, he and other officers are within those described in Article 7.2. Of importance also is Articie 3.1: ?here shall te two (2) consecutive 2ays off e.ich shall be r&en-e? to as scheduled ,days off, except that days off lay 'be non42cnsecutive i2 agreed upon 'b3eec~ the mployee ard the ministry. For reasons which will appear, mention has been made in the course of t.he hearing of this case to .J.rticle 35.1, which 1s as :ollows : - 3 - It is agreed that all miillstries may enter into local and ministry enplcyee relations negotiations su& that tihey are appropriate as not being excluded 'by the provisicns of Ihe Crown Zmpioyees Coliective 3argaL-ur.g .\ct. Such negotiations shall not be subject to the mediation ard arbitration prccedures under the acct. orovided however, that n0t.hi.q shall preclltie a grievance all&g a violation of the Collective .Agreement, as provided in the said Act. Yr. Jones' grievance, presented on January 15, 1980, was as follows: The rotating roster (auxilim shifts; as assigned in >w. A. SW'S memo of Jan 7/80 are a :hoiaticn of .&ticle 7.2 of the coliective agreement arr? the minute of urderstaiing made.;anuary 25th. 19'76 b&ween '?nanagement" ard Local ?A1 SPSEO. The issue is more clearly defined in the settiement sought by the grievor: Termination of auxi;iary shifts or eight hours overtime payment for each pericd .nhich the schtiule necessitates an emplcyee wrk six eight hour pericds (48 hoursi prior to receiving ?r~) consecutive days off. In short, the substance of the employee's claim is that overtime should be paid after five consecutive shifts. This is an issue which has previously been explored in silch cases as 3arnfield 57/75, 3ateman 2177 and more recently :ierr 362,'30, in which the facts varied so t:oat the results varied. - 4 - The parties here agreed cn a statement ,of facts, Exhibit 3, which must be guoted in fui?: 1. 2. 3. 4. 5. 6. 7. a. 3. ?a-. T. Jones is employed with the Ytiistry of Correcticnal Services at .Xillbrook Correctional Centre in the .wsiticn of General ixrty Gfficer (Correctional Officer 2) and has been employed in this position since Jtiy 27, 1970. General Iuty ,Cfficers work rotating shifts to prov+de for the correctzcnal control, welfare and security of xmates 24 hours pr day, 7 days par week. Prior to 1972, General LUty Cfficers wrked 40 tours per week, five consecutive days of kork followed by 2 consec- utive days off. Days off did not rotate. In 1972, a Lccal ,tiute of Werstandw aiterad the methcd of rotation to include rotating days off. The shift schedule included gericds of six consecutive days of work- Exhibit C. In 1976, the Lccal Minute of Chierxantiq was qxtated. DE metk$ af shift rotation is 2esc,C--bed in a iccal ?lir.ute of LMerstandtig dated January 26, 1976 - Shibit 1. The Local hute of .tierstar&ng was ii? accordance wi%h the mute of Wderstandirr betwen the .Ministry of Correcticnal Services and +he ulicn dated Wvember 8, 1973 - Exhibit 2. General Cuty Cfficer complement at Yillbmok Correctional Cent-e increased fmm 76 to 90 in Karch. 1978. 'Ibe Fresident of &al 311 O.I.S.E.E., tillbrook Correcticnal Centre was advised in a letter dated June 22, i978, that the L'tinute of LMerstanding ilas outdated and 'c".e item ;r;uld %e placed on the agenda for the next Lccai hployee Mations Ccmmittee meeting - Echibit 3. At a kcai Employee 3elations Ccmittee !4eting Jute 27, 1978, *he staff side was advised Maat !Ninute cf 'Q-&arstanding zf January 26, 1976, was "no lcnger in effect as a restit of ompiement increases and pmgrarrme changes. It wai agreed to rewrite the Local Yinute of rtierstanding !Arough future meeuqs. Another La2a.l tiute of Lt&rstsndi.~g ?as r.ot been evolwd to date. 10 . General tuty Cfficer complement at XiU~ook Correctional Gntre increased from 90 to 3i ti Api1 i, 1979. li. staf: here pstsd to "aLxilliar1 shifts" or SuppiementaFj shifts" effective June 10, 1979. 12. Vr. T. Jones received tie atcached resmnse to his grievance at the second stage - %&it 4. 13. lYe grievance was proprly ~ccessad through the grievance prccedure and the 3ca.rd has ti+e authority to decide the case on the merits. ' The griever was represented at the hearing by Mr. R. Xabi, a grievance officer with t,he O.?.S.E.ti. but chose to explain mos: of the case himself. In view of the fact that there had been an agreed Statemeat of Pacts and that a number of Exhibits 'were filed on consent, the matter may be decided almost entirely on the documentary evidence, although the employer called as a witness Mr. ;.A. Rundle, Superintendent of the Institution at Miilbrook for the past four years, who described the history of some 35 the Exhibits and the facts estabiished therain. To avoid confusion, in an effort to be consistent with the ?.umbers yJ.sed in the Statement of r'acts, Exhibit 3, we have renumbered most of the Exhibits. As set out In paragraph : of rhe Statement cf Facts, Cenerai %ty Officers like Mr. Jones in the cericd >ricr to 1972 I -6- .worked 40 hours a week in five consecutive days of work, foliswed by two consecutive days off, and the days off did 7.0t rctate. The 1972 Local Minute of Understanding provided for. rotating days off, and the schedule included periods of six consecutive working days. Tha: minute, Exhibit C, dated December 14, 1972. was stated to be made pursuant to a Treasury Eoard directive of 1967 and an understanding between Employees Relations Committees and the Yinistry made in June, 1972. It said there were 47 positions normally to be filled at the institution I that there were to be three shifts in each 21 hours, that they would rotate over a lo-week period and that the regul~ar days off assigned to each position would advance one day every twc-week period. The Ylnute, however, contained an "escape clause." It conciuded by stating: "This !di;?ute of Cnderstanding is in ai=- --A-Ct only as long as the Institutisnls program, complement, establishment, and position ~assignments maintain their present form. tiotwithstanding the afcrementioned, this Yinute of Understanding shall remain in force for one year from the date of signing, and Gill be automatically renewed fcr a period of one year annually unless one cf the Farties gives notice sne mcnth in advance ,of each year's ending, that an amendment 1s required." The ?linute was executed by .Yanagement and the hion and was also ratified by the Zeputy Ylnister of that C&J. In 1975 another Minute of Cnderstanding was negotiated and concluded localiy, 2xhibit 1, dated January 26, 1976. This Yinute referred to 52 positions normally, three shifts rotating over a five-week period, shift changes to occur after days off: it provided also that regular days off would advance one day every week. The concluding paragraph contained the same "escape clause" as that quoted from t:ne 1372 Yinute: The 1976 Local Yinute was made pu:suant to a llinute of Understanding between the Ministry 'and the Union dated in November, i973, Exhibit 2. That d0cumen.t provided for tS,e creation of Zmplayee 3elations Committees at the local level to negotiate and settle various matters of local concern, subject of course to the excljusisn of certain specified topics governed by legisiaticn or by the Civil Ser.?i.ce Commission or having a service-wide impact. Acco:dihg to Y?. Xundie, the Commitree established at YillSrcok met about once a mont:? with representatives attending from bot.. h the Union and Yanagement. it has also *been explained that as the nu;nber of ’ i. inmates at Yilibrook increased it became necessary to add more Duty Officers. ktUal?y. some of the inmates have had to be housed ,outside the walls, which required a larger staff. In Yarch,~1978, the complement was increased from 76 to 90. Three months iater, fianagement informed the president of the local union that the 1976 Minute of Znder- Standing was "out-dated" and the matter would be placed on the agenda for revision at the next Employee Relations Committee meeting. This was duly discussed on June 27, 1978, when the Committee agreed that~a new Ninute should be negotiated at future meetings. However, at the time.of hearing this case, no new Yinute had been concluded. In the meantime, the complement of officers at Xillbrook was increased from 90 to 97 in April, 1979. Effective June 10, 1979, the new staff were scheduled to work "auxiiiary shifts" or "supplementary shifts." This of course vas slightiy more than a year after Management had given notice that the 1976 !cr!ute of Understanding would have to be terminated. Mr. Jones' submission is that since no Minute was in effect after termination, the scheduiing arrangements at Yillbrook should revert to the position as it existed prior to the first Xinute of Undersranding in 13i2. 3 his case, this wculd :mean that ihe wcuid srcrk five consecuti.:e days and t:hen get two days off without rotation.~ The employer's response is that in the absence of a locally-negotiated !4inute of i'nder- standing it ,is entirely for Flanagement to determine, as part of its reccgnized statutory perogatrves, how all shifts are scheduled, provided that schedulin g conforms to the require- ments of Articles 7 and 9 in the applicable coliective agreemerIt. The essence of the complaint is that W. Jones,. like other officers, is frequently required to work six consecutive days before getting two or more consecutive days off, and that for so doing he is not deemed 5y Yanagement to qualify for cver- time in respect of the sixth consecati,?e day. For example, in Cxhibit 4, which is the schedule for the month of July, xai, Hr. Jones is shown jiorking from triday, July 3, to Wednesday, July 9;six consecutive days: from Saturday, Julv 11, to Thursday, July 15, six consecutive days. The first of the aforementioned pericds is followed by two consecutive days off, and the second by three consecutive *ays 3ff. In the following week, ;however, he was scheduied to work from Xonday, J.~iy 20, to Friday, July 24, five consecutive days, follcwed by three days off. .4 simiiar gattern can be d?is:erned in tke schedule for other officers iisted in Exhibit-? , the third sheet of ~h.ich 1~s reprodilced on the nex: ?age. . . :,. - 10 - -c . . a. - 11 - . Superintendent Pundle testified that Nillbrook is the Maximum Security Provincial Institution, accomodatinq "problem cases." There is celluiar accomcdation for 224, but there are no vacancies and Management has had to provide "12 beds outside." it was this growing work load which necessitated. an increase in the~number of officers. The so-caiied "auxiliary shifts" were designed to cover the peak periods between 6 a.m. and 11 p.m. Mr. Pundie said the system has hot really been changed except for the addition of auxiliary shifts: the cycle was jasically the same. He added that schedules are arranged in biocks of seven days, from Sunday to Saturday inclusive. If the work week of seven days beqins cn Sunday and ends on Saturday, it becomes apparent from analysis of Exhibit 4 that employees must often work more than five consecutive days before getting two (or three1 consecutive days off. On the other hand, they do not work more than five shifts in any week between Sunday and Saturday. ?ive (or six) consecutive work days may and often dc spill over from cne *dor!k-week into the next. The management's positicn of course is that they work no more than five shifts in any period between Sunday and Saturday, so -hat their maximum hours :durinq~the established ,work-week never exceed 40. The only exceptisn would be uhen . . . . . - 12 - an employee is.called on to work beyond his eight-h~our shift, in which event he would become entitled to the overtime premium under Article 13 of the collective agreement: 13.1 lbe eve-rtime rate for the purpses of this Agreement shall ke ore and one-half (14) times the employee's basic hourly rate. 13.2 In this Aiticle, .";ove-rtime" means an authorized period of rrl3rk calculated to the nearest half-hour and w- formed on a scheduled xxking day in addition to the regular working pried, or performed on a scheduled day(s) cff. 13.3.1 Employees iq Schedules 3.7 ard 4.7 &IO .mtiorm authcrized ymrk in excess of seven and cnequarter (74) hours or eight (3) hours as applicable shall ‘bs paid at the overtime rate; It was submitted on behalf of the grievor that an empioyee's five consecutive shifts should all fali within one calendar week. The diffic.ulty about this is that the :oliective agreement says nothing of a "calendar week," and the right to arrange assignments is one reserved to the employer by Section 17 of The Crown Employees Collective 3argaining Act. In any event there is some 'doubt about whether a "calendar 'week" begins on Sunday or on Monday. It *was also submitted that the original staff could have been iestord to the :kind of schedule in effect prior to 1972, and that the addi ti.onal employ&s could 5ave filled t:?e so-called auxiiiary shifts to cover the peak periods. - 13 - For the employer, Mr. !Nhibbs argued that there had been no violation of either the collective agreement or any Xinute of tnderstanding. The Union had been duly notified in June, 1978, cf what amounted to termination of the previous Yinute and the auxiliary shifts were not introduced until .4pril, 19i9. 'There was nothing in the coilactive agreement or the legislation to prevent Management from deciding on the most appropriate arrangement of shifts to be uised at hillbrook. He referred to the decisions in 3arnfie:d and Bateman, &upRa. The 3oard held unanimously in Kerr that there had been a violation of Articie 7 in that the scheduies were so arrarqed that employees necessarily worked at least once in each four-week cycle for more than five consecutive days ;Jithin one working week, whether the week commenced on Monday, Tuesday, Wednesday, Thursday, Friday, Saturday or Sunday. The facts were therefore quite different from t.nose 2n this case. Here we. find that the stork-week commences on Sunday and that employees, as may be seen from Sxhibit 1, are no: required to work more t,han five consecutive days within the week from Sunday to Saturday inclusive. It is true t:hat they cften have to wor!c six consecutive days, one or more in one work-week and five or less in another work week, and while these may be consecutive and sometimes are consecutive, there is nothing in the collective agreement or elsewhere to bar silci4 an arrangement. The net result is that in no work-week (Sunday to Saturday) are empioyees scheduled to ror:k more than i, _’ . - 14 - 40 hours. Although the grievor and his fellow-workers must frequently work more than five consecutive days, it is also true that they receive inore .than two consecutive days off several times within a cycle. The result necessarily is that over the extended period of. the cycle they get a number of days off corresponding to what they would get under a non-rotating schedule of two days off after each five shifts worked. For the reasons above stated, we are obiiged to conclude that the gri evance is not well-founded and must be dismissed. DATED at Toronto this 2nd day of ?ioverrber, 1981. 3.3. Jolliffe, O.C. Vice Chai--an M. X. Perrln, klember A. X3. ."lcCuaig\ ?!emZer