HomeMy WebLinkAbout1980-0352.Kerr.81-09-16 jy r/
' ONTARIO
w CROWN EMPLOYEES
r GRIEVANCE
F SETTLEMENT
BOARD
180 OUNOAS STREET WEST, TORONTO. ONTARIO. M5G ?Z8 SUITE 2100 TELEPHONE, 418159B-0588
111 THE MATTER OF AN ARBITRATIv d
Under The
CROWN EMPLOYEES COLrECTIVc 3ARGAItiI �G AC?
Before
THE GRIEVANCE SETTLEMENT BOARD
Between : Mr. David Kerr Grievor
And -
The Crown in Right of Ontario
(Ministry of Community &
Social Services) Emplo,.7er
Before Mr. E . B. 3olliffe , Q .C. Slice Chairm-an
Mr . A . M . McCuaig Member
Mr . W. Walsh Membe:
For the Grievor: ;fir . M. Pratt, Grievance Cfficar
Ontario Public Service Emoloyees Union
For the Employer: Mr . S . Abramowitz , Manawer
T EmpLovee Relations
ministry of Community & social Services
Hearing: March 1.31 1.981
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The grievance of Mr. David her_ co=glai a " Kat
1 am not being paid overtime for the hours of work in
excess of 40 hours per week. :article 7: 2 ."
As the "settlement required" the g_ievor asked
"that the overtime owing to me, retroactive to the i=rle-
aentat_on of the :resent sctedule , be ?aid imze iately" .
The factual background is that al Viougi =ost
employees of the Ministry -,cork Five days a week from 9 a.n.
to 5 p.m. , there are those like the grievo, on '' shift .York;'
w10 rotate tircugh a 28-day cycle on the day, aftei=oo= or
midnight shift. This need .arises because Cbservation and
Detention ':porkers at Amherstburg must care for their
charges on a 24-hour basis. 1.n other words , it is whr,,
would be called in industry a "continuous operation" .
'T'ae applicable provisions of tte col lec ti7e
agreement are the following:
mrtitle 7 - HCuY5 Or . CRK
7.2 .3CHLDULE 4 and 4.7
The normal hours of work for employees on t'nese
schedules shall be forty (40) ours per weep.
and eight (3) hour^s per day.
article 8 - LAO Oy,
8. 1 There stall be two (2) consecutive days off
waich shall be referred to as scheduled days off,
except that days off may be men-consecutive if
agreed u?on between the employee and tae
ministry.
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in will be readily apparent tl; 7 no :ai ai
constant coverage of the work, there must be tree stilts
of eight hours each in a 21-tour period. 1s will ai=o be
apparent that in fairness to all employees , each Tu3t
take his or her turn working on the day shift, the after-
moon shift and the midnight shift. in tie bnta_^io =u!lic
service a number of different schedules lave been devised
to meet these requirements. One of these schedules,
!xhibit 3, has given rise to Lr. Kerr' s Grievance.
The problem was clearly sated by Mice--C'cama:y
Ewan in 3arnfield 67/76, and we cannot yo better `iaa
quote his explanation at pages 7 and 3. After quoting the
„management rights" clause in section 170 ) of The Trag,"
Zmaloyees_Collective 3arsainiZg ict, he said:
The question before us, really, is she
extent to which management initiative to deploy
its work force is circumscribed by the ter_s of
the collective agreement 0 respect of t e v ievcr
and those in his position. To some Atent this
turns on the meaning of the word "normal" i s
article 7.2, and on the appropriate reference
provided which must be implied, since in is not
expressed in article 2.
in the employer' s submissions, "normal"
refers to tae usual practice across tie bary_a_:-
ing unit, where shift work is not common and
varies in prevalence de?ending oa seasonal re-
quirements. Thus the grievor' s position could
be characterized as "abnormal" , and the require-
ments of article 7.2 can be relaxed, provided
that its spirit is still honoured. in addition,
the employer has agreed, in tae course of sealing
with this grievance, that days off =us; acme i..
consecutive pairs. it =aintaiss, however , t at
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as no specific period is .yet our in az:ic_e S.- ,
there is no requirement than da7s off c:.me
any particular cycle, or weekly as asserted 07
Le grievor.
The union' s position is predicated oa an
interpretation of "normal" hear relates person-
ally to each individual employee, so star when
the "normal" hour requirement is no: .met, over-
time is payable for additional hours. Simllar!7,
;,he Union would infer a weekly cycle in ar o icl e
8.19 so that the two days off would occ= in
every week.
What distinguishes this case from the unanimous
decision in 3arnfield, and a decision authored by ice-
Chai:maa 3richard (also unanimous) in 3aam 2/77, is
that tine schedule being challenged here is not ace same
as either the 3arnfield schedule or the 3ateman scaedule,
and 0 !as different results. Ne share the view expressed
by Vice-Ohairman irichard that "there are sioni;icant
advantages to gaining consistency in subsequent interpre-
nations of the collective agreement, " a comment he made i_
response to a union argument that 3arnzield :.ad been wrongly
decided. }nevertheless, the principle of consistent; does
not arise if, as in this case, the facts are so different
from those in previous cases that they lead to a different
result.
it is significant that bottd qa=Ales in. atis case
found some comfort in 3arnfield and 3a�, ref?ecting
their own uncertainty about the issue. Their argu=ents will
be =entioned after reviewing the facts peculiar to this case.
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Keorodaced on she n xt page is .4e s;n7ec
schedule, .rxlibit 3, not including some i==a :.erlal aaa:-
written notes on tae margins. A Cave also taken pie
liberty of insertizG L► clean scrips Le dates between
June 30 and July 27, inclusive , in 1980, because some of
the dates originally ',critten by the author are almost
illegible. Tie grievor is shown on the fifth '_tee as
"Dave K." to distinguish him from anotier "Dave" .
In reading :exhibit 3, it is well to keel in
mind dictioaa_r7 definitions of uhe word "week, " wlich
were quoted in both 3arnfield and 3ateman. the :cord does
not necessarily refer to what man,, would consider tie
"calendar week." the Oxford Universal Dictionavy ( ;rd
edition, revised) includes the following:
1 . The cycle of seven days r ecog=ized
in the calendar of the Jews and thence
adopted in the calendars of Christian,
Kohanmedan and various other peoples; a
single period of this cycle, beginning wita
the day traditionally fixed as ale firs: of
the week . . . .
2. n space of seven days irrespective
of the time from which it is reckoned.
b. Seven days as a term for per iodizK
payments (of wages, rent or the .like) or as
a unit of reckoning for time of work or
service . . . .
3. The six working days as opp. to
Sunday; the period fro= Monday to Zawrday . . . .
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Upon applying the defimi io ns _ :coTnize:, by
Oxford universal tic tionary, the week =us, cc==ence el;±er
on Aonday or, in appropriate circumsrances on one of -le
other six days between Tuesday and junta,- inclusive.
can be inferred from the form of the 23-day schedule f:.r
the period from June 30 to July 27, 1c.80) :.tat in t iz
case the work-week was deemed to beSin on : oaday. ==o ever,
it is useful to discover the results of the al;er=a:ives
if the work-=peek were to cozzence on any one of seven ways.
Ripon analysis, the seven alternatives are as follows:
( 1) assume a work-week of Zonday to iumday:
( a) r first week of tae cycle, June 30 to a my 6:
Kerr works Honday to Saturday, six ccn secuz!7e
days, and !as Sunday off.
(.b) Second :reek July 7 , 10 13 :
Kerr has two days off and works nednesday to
Sunday , five consecutive days.
(c) Third week, July 14 to 20, Ter= works
ionday and Tuesday, has ZeAnesday and Thu sway
off, and works Frida7 to Sunday, three consec-
utive days.
(d) Fourth :reek, July' 21 to 27, Kerr works
Monday to Thursday, four consecuaive days , azd
has the next three ways off, Wida„ to Sunlay.
Result: The grievor has eight days of=, July 6,
7016917,25,26 and 27, and works the otter 20
days, but in the first weer of the cycle he works
six consecutive days.
(2) :assume a work-week of Tuesday to Monday:
(a) Azst -geed of the cycle, j07 7 ;,0 7, se_r
works Tuesday to 6aturday, five corsecu:.ive d s,
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and has Sunday and E.onday off.
(b) aecoad creek, July 8 to 14. Kerr aac _ _'sda7
off and works from -1,0'ednesday to ••ondw7 i�:c_u;_ve,
s_x consecutive da7s.
(c) Third week, Ju17 15 to 21 , Kerr ,ror_.5 on
Tuesday, has -:;ecinesda7 and Thursday off, and
works Friday to elloaday, inclusive, four consec-
utive days.
(d) 'ourth week, July 22 to 28, Derr rcrks kes-
day to Thursday inclusive and has :,he next t1aree
days off, Friday to Sunday inclusive, a:d works
again on :?onday, July 28.
Result: The gr ievor has eight days off, July 6,
7,8,16,17,25,26, and 27, and works the other 20
days ( including Eonday,July 28) out in the second
:gee's of the cycle he corks six consecutive a.-s.
( 3} assume a work-week of '.vednesday to Tuesday:
( a) rir st week of the cycle , July 2 to 8, :err
works iednesday to Saturday, four consecutive
days, and has the next three days off.
(b) :second week, July 9 to 15, Derr works "nednes-
day to Tuesday, July 9 to 15 inclusive, seven
consecutive days, and has no days off.
(c) Third week, July 16 to 22, Kerr '_.-as '- edges-
day and 'ihu:^sday off gad works from Friday to
Tuesday inclusive, five consecutive days.
,(d) Fourth week, July 23 to 29, Kerr works
:,ednesday and T'hu_rsday, has three days off, .ridgy;
to Sunday and works again an :-:onda7 and .•-uesday,
July 28 and 29.
ie�: The g`ievor has eight ways off, o,
7,8,16, 17,25,26 and 27, and works the 20
days ( including July 23 and 29) but is the second
week of the cycle ye works seven consecutive
days.
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( ) ,ssuae a work-week of Thursday to ,vecnesda7:
( a) First week of the cycle , July 3 to 9, Herr
works Thursday to baturday, zap^ee consec hive
days, has the next three days off and works
again on Wednesday.
'(b) :second ;peek, July 10 to 16, Kerr works
Thursday to Tuesday inclusive, six consecutive
days, and has Vednesd.ay off.
(c) Third week, July 17 to 23, Kerr has tie first
day off, Thursday, and then works from ;iday tc
Nedn.esday, inclusive , six consecutive days.
(d) Fourth week, July 24 to 30, Kerr works tie
first day, Thursday, has tizee days off, and then
works again the last tar ee days of the :reek, 4 my
28, 29 and 30, Monday to 4edn.esday.
Result: The giievor has eight days off, j my 6,
7,8,16,17125,26 and 27, and works the otter 20
days ( including July 28, 29 and 3011 , but i n both:
the second and third weeks of the cycle he -.corks
six consecutive days.
(5) ' nssune a work-week of Friday to Thursday:
(a) First week of tine cycle, July 4 to 10, Kerr
works Hriday and Saturday, has three nays off,
Sunday to Tuesday, and works again "Nednesday anc.
Thursday.
(b) Second week, July 11 to 17, :err werjs T ri n
to Tuesday, five consecutive days and then :.as
Wednesday and Thursday off.
(c) Third week, July 18 to 24, lerr works ever?
day, Friday to Thursday inclusive, being seven
consecutive days.
(d) Fourth week, j uiy 25 to 31 , Kerr !as tree
days off, ;ridgy to Sunday, and works the aest
+5 #
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four days, vmy 23 to 31 izc'is save.
jesult: The grievor d"s eilit days off, a ly
6,7,8, 16,17,25,26 and 27 and works the ocher 20
days (including July 23,0, 3C and 31 ; bus L= sne
third week of the cycle he has no days off and
works seven consecutive days.
(6) Assume a work-week of Satu_*•dy to F rida::
(a) First week of the cycle, July 5 to 11 , Orr
works the first day, Saturday, then has t' .r ee
days off, Sunday to Tuesday, and works again the
next three days, Wednesday to ?=iday.
(b) Second week, July 12 to 18, Ze:r works four
days, 6atuzday to Tuesday, has two days off,
Wednesday and Thursday, then works aga;: on
Friday.
(c) Third week, July 19 to 25, Kern ".kris fro=
Saturday to Thursday inclusive, six consecutive
days, and then gets one day off, 3 ri:ay, j u!y 25.
(d) xourth :,reek, July 26 to August 1 , Earr !as
two days off, Saturday and 6unday, add then works
five days, honday, July 28, to Friday, nugus„ 1 .
This is so because the Employer' s 23-day sc'ned•:le
necessarily repeats itself as and from HOn da;,
July 23.
Result: The grievor has eight days off, July 6,
7,3,16, 17,25,26 and 27, and works the otter 20
days ( including the five days from londay, July
23 to Friday, August 1 , inclusive) but in tie
third week the g+ievor works six consecutive days.
(7) Assume a work-week of Sunday to Saturday:
(a) Arst week of the cycle, July 6 to 12, aarr
as Sunday, Non ay and T u_sda,? off, then works
the remaining four days from :+er.=esdaj cc
Saturday.
(b) Second :3eek, Juiy 13 to 10, Kerr works ale
first three days , has dedmesday and Ta_sday off,
then works again on Friday and Saturday.
(c) Third week, July 20 to 26, Kerr .corks five
days, Sunday to Thuzsday inclusive, then has
±riday and Saturday off.
(d) Fourth week, j my 27 to lugust 2, Kerr has
Sunday off, then works six consecutive ways,
;Monday, July 28, to Saturlay,, August 2, thus
following identically the sane pattern as slat
shown in the schedule , Exhibit 3, for the 28-da7
period commencing Monday, June 30,
Result: The grievor has eight days off ( as
all other examples) , i. e, umy 61718,16, 17,25,
26 and 27, and works the other 20 days is the
23-day cycle ( including of course July 23 to
3ilg.ist 2, inclusive) but tter iEVOr works
si-x
consecutive days in the fourt! week.
Tie analysis above is based exclusively on Exhibit 3, tie
Employer' s schedule for the 28-da7 period com=eacing jume
301 1980, and upon tte parties' assurance that it is rep-
resentative of the 28-day schedules repeatedly posted at
material tires.
From the analysis certain significant facts
become clear, as follows:
(A) The schedule contemplates necesaar ilF :h:_t
=e g=ievor' s days off, whether two or !Area , will always
be consecutive, an attempt to meet 'is r e:uir e_en,,
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in article 8 of the a plicable agreement fiat "nin=e siall
be two (2) consecutive days off which stall be r eferi ed
to as scheduled days off" --- except where tte contrary
is agreed upon by "tie employee aad the ?inis7ry" .
Whether this requirement is net when uhr ee conzecu;.ive
days off (ratter than tiro) are scheduled twice i_ eaw'a
cycle is a point which will be discussed.
(3). The employer' s 28-day schedule is such
that --- regardless of which day of tie week is he one
deemed to be the beginning of tie work-week --- tie 3 ievor
will always be scheduled to .ork 20 days and lave eight days
off. ;his is obviously desixned to corres?cnd win! !a
standard work-week, eight tours a day for five days , a
total of 40 tours. Sonsidered over a 28-day period, oter e
is, in the employer's view, ao overtime at all , groviied
tie schedule is adhered to. it is clear zhaz in 3os,-
calendar :reeks the grievor will aot work five days and
Set two days off. The employer' s approach is that the
exact equivalent is provided in the form of eilit carts
off in each 28-day cycle (an average of two days _er week)
and the employer therefore considers that am employee is
in no Tray prejudiced by such an arrangement.
(C)
The employer' s 28-day schedule is s=2 teat
---- regardless of the day on whist the wo=k-week is deemed
to commence --- at leas:, one of tie f jur weals in tie nrisd
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necessarily involves scleduled work of ,._x or even seven
days. it will be seen from the analysis above, =a cic-
ulazly from the results stated what . . .
Q1 ) if the work-weer com.ences on hcalay 'is
it probably does) tie grievor most wo_s six consecutive
days in the first week of the cycle;
(2) if the work-week be deemed to co==ence oa
Tuesday, the grievor must wort six consecutive days in ole
second week of the cycle.
( 3) If the wort-week be dee ed to commence on
Wednesday, tie grievor must work seven consecutive da7s
in the second week of the cycle.
(4) if tae :cork-weed be -deemed to commence or-
Thursday, the grievor must work six consecutive days
both tae second and thi,d weeks of the cycle.
(5) if the work-week be deemed to commence on
Oiday, tae grievor must work seven consecutive days it__
the t`r_iw d week of the cycle.
T y1
'v i the work-week be deemed to commerce on
6aturda7, the grievor must wo=k six consecutive days in
the third week.
(7) if the work-week be deemed to cc.::ence on
Sunda; , the grievor must work sic consecutive .gays in tue
fourth week.
The pattern described above is moo peculiar tc
toe ;;rievor. glance at !xAbit 3 will syotY tta: it
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aay lies in exactly the same way to one o sh__ ez; ogee ,
whose name is given as "Gloria" . _ou= :airs (a=cng eight
employees) have the same schedule. Zor each pair of
cc=se, analysis would reveal the same r esulps.
It is interesting to note, however, ;,hat if ie
work-week commences on : ondays, the phenomenon of Yevem
consecutive days of work in one week Never occurs. 4 ha .
does inevitably occur is the pheaome non of six consecutive
days cf work in one of the four work-weeks.
It is also clear that each employee will have to
work seven consecutive days once or twice in each cycle, nc-
necessarily falling wivhi= one work-week. Since the
henonenon of seven consecutive working days l witi : one
week) is absent from a cycle commencing on hoaday, 0 dses
not constitute the real problem de_e.
The problem is that of the six consecutive days,
occurring at least once ia each w7c'le, and tha issue is
whether the srievor is entitled to overtime for ito sixth,
day. - " glance at Exhibit 3 reveals that (assuming the
;pork-week --- and the cycle --- commence on honcay; ate
grievor and "lloria" must work six consecutive days in the
first week of each cycle. It has also teen shown La the
foregoing rather laborious analysis that the employer' s
problem cannot be solved (with this scied::.le; by atoosi:g
a different day on which the :work-:leek is to cc=mence.
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Me distinctive feature of :' a scte rule h& =
considered In this case is that each employee will =req e=._7
be required to work six consecutive days ( i.e. 48 10"-V In
a "creek, " regardless of the day on which the 'gees is dee ed
to commence. This is different from previous cases.
la 3aznfield, which involved a 28-day cycle, the
following result was arrived at upon anal7sis of -.he scheiul e:
For this particular employee' s schedule,
therefore, all of the conditions are met: is eaca
calendar weer there are no more than forty aou=s and
there are two consecutive days off. Of course, if we
were to insist on applying the calendar week require-
meat, other employees working on interlocker sc edules
could not meet all of these conditions since the dis-
tribution of days off would be different. Tie parties,
however, have not specified "calendar weeks" , but mere!?
"weeks" , and there appears to be no reason to prefer
one of the definitions above to the other. larefore,
by merely designating a different day of tie week as
the starting day for each of the four employees ( or
groups of employees) required to staff this rota ing
schedule, tie employer will be seen to have met, ~n
respect of each employer or group , the requirements of
the collective agreement.
3ateman involved a three-week rotation. Tie
3oard arrived at the following result:
The Hinistry points out that if the work week
is defined as running from Sunday corning through
Saturday night the grievor works five eight :our shifts
per :seek and receives Iwo consecutive da7s off eac:: :reek.
if reference is made to Table 1 above, Zte e=1107er' s
argument can be seen as factually correct. :0 leav?
vertical lines on the Table define the work week y
accordance with the employer' s submission and it caz le
seen that on that definition of the work week there is
no violation of the collective agreement. .
It should be readily apparent, :&=, !a :te
success or failure of the grievance turns on aow the
work :reek is defined. if tie 20istr7 is free 10 defi:°
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the work week as is wishes, ;,he gr=era:ce falls. -- ,
an tae other is d, by the werws of the collec-_-re
agreement or by the .• inistry' s own act}cas, 70 hi=-
s ability zo define the Nora weep is r sstr_ene:,,
then the grievance succeeds if the ;pork-weer is efi=K
as running from Saturday to Friday.
It has been shown in the analysis of lxiibit ; it
this case that the results in 3arnMld and Iatema: ca--c
be realized here simply by choosing a different !ay 71-1
which to open each week.
As stated at the outset, the applicable _annsage
of the collective agreement ( in 7.2) is that "the ncr=+al
.ours of work for employees on these schedules shall be
forty (40) hours per week and eight (4) hours per day."
Here we have a schedule w.ich mavas _
inevitable that employees affected will during each 23-da-
cycle work +8 or even 56 hours once or trice , regardless of
the day A which a seven-day work-week is dewed to cc=ence.
This is not a schedule which complies with or ca=
be manipulated to comply with the ex7ress r e,ui.r event s of
Article 7.2. It is simply irreconcilable :pit= tte OC-_c=
week concept.
The theory that such an arramgeme:t is jussifiable
because employees get eight ,lays off _n each cycle
avera e of two days per week - - is the only defence that
has ever been advanced for such a_rr angemer ta. However, :_ere
is no provision for that parricu a rind of "aTe,ag.l.g:' i= tae
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applicable collective agreement.
If the "averaging" theory were successfully
carried to its logical conclusion, there would be little
reason to question a schedule setting up 20 consecutive
shifts at work followed by eight days off, or 20 weeks on
and eight weeks off. Whatever the merits of such schemes ,
there is nothing to suggest that they were ever contemplated
by the parties to the collective agreement. What they did
contemplate, it is apparent, were schedules consistent with
provincial legislation which has done much to encourage a
maximum &-hour meek and payment of overtime thereafter.
At this point, it becomes necessary to refer to
the arguments advanced by representatives of the parties .
For the Union, Mr. Pratt said at the outset that
the Board is being asked to decide "the essential issue. " we
understand that issue to be whether the schedule in Exhibit 3
conforms to the requirements of the collective agreement, and
our decision is that it does not. We have also been asked tc
interpret Barnfieid and Bateman. However, as already stated,
those cases are distinguishable from this case.
In his argument, Mr. Abramowitz said- rticie - ,F
contemplates "normal." hours of work and does not apply tc e
nature of staffing requirements at a detention centre . We do
not consider the word "normal" can be construed to exclude
certain employees from the protection of Article 7 .
"Abnormal" requirements would in our view involve the scheduling
of overtime work if and when necessary; "normal, " on the other
nand, refers to regular, continuing requireme-its, which for
many jobs :Wean working from 9 to 5 , but in a job like Mr. _[er r ` s
will necessarily (and normally) result in rotating shifts .
There is nothing abnormal about the latter when there .;rust be
personnel on duty 24 hours a day, sever_ days a week. In brie=,
rotating shifts are a perfectly "normal." feature of many
institutions, and Article 7 relates to the "normna? hours cf
work" for employees in such institutuion. it would take very
strong and clear language to make the_*= the exception to the rule.
The Board finds the disputed schedule, Exibit 3 ,
to be contrary to both the spirit and the letter of the pro-
visions- in Articles 7. 2 and 8 . 1 of the applicable collective
agreement. it is clear that the emplover has an obligation to
devise a different and better schedule, of which examples
exist elsewhere in, the public service.
Mr. Kerr has requested that he be paid overt-4-e ,
"retroactive to the implementation of the present schedules. "
These two issues --- whether overtire is payable
and, if so, whether there is an entitlement to retrcactivity
--- present certain difficulties , having regard to the language
of Article 13 in the collective agreement. Hcwever, it was
indicated to us by the representatives of the parties that if
the primary issue, i.e. the validity or invaLidity of the
existing schedule, Exhibit 3, is determined, then the parties
:night be able to arrive at a satisfactory resolution of tie
overtime issue. If they achieve success, it would be a
commendable result. If not, the Board would be prepared to
hear further argument on being notified by either party, on
or before November 15 , 1481, that another hearing is desired.
If such notice is not received, this decision is to be taken
as final. To the extent hereinbefore stated, Mr. Kerr' s
grievance is upheld.
DATED at Toronto this 16th day of September , 1981 .
- ' - y i Vice-C:i�ai-�a
E .B . Jo1'iffe `�
A. M . McCuaig membe_
W . Walsh , Member
EBJ: j ce