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HomeMy WebLinkAbout1982-0365.Burns.83-02-28IN THE MATTER OF AN ARBITRATION Under THE CROW EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before/+ For the“Grievor: For the Employer: OPSEU (Patrick Burns) Griever - And - The Crown in Right of Ontario (:4inistry of Correctional Services) Employer P. M. Drap2r 'iice Chairman T. Traves Medoer w. J. Evans Meniier M . Pratt Grievance Officer Ontario Public Service Employe2s Union J. F. Benedict Manager Staff Relations Personnel Branch Ministry of Correctional Services Hearings: January 5, 1983 February 2, 1983 -2- DECISION The Grievor, Patrick Burns, grieves that he is being required to work beyond his regularly scheduled hours of work and is being denied overtime compensation for the additional time worked. The parties agree that the essential issue to be de- cided is the status of the meal period in effect at the Toronto Jail. The Toronto Jail is a maximum security institution which accommodates from 400 to 600 inmates and employs approximately 150 Correctional Officers. Security, control and discipline are of paramount importance. COTS are in uniform and terms such as "briefing area", "assigned post", ~"parade", "muster" and "standing orders" are in general u&e. In July, 1982, the then Superintendent of the Toronto Jail, Ian Starkie, issued a directive on hours of work supplemented by memoranda from two other officials of the Jail on scheduled meal breaks and Shift Supervisors' respon- sibilities, all of which became effective on August 2, 1982. This material was filed in evidence (Exhibit 2) and is ap- pended hereto. The Grievor testified that he has been employed as a _ Correctional,Officer 2 at the Toronto Jail since 1976. The correctional unit is on 24 hour duty made up of.three eight' hour shifts. Until early 1982 the "posted" shifts were ~ 0700-1500, 1500-2300 and 2300-0700; The "worked" shifts were 0645-1445, 1445-2245 and 2245-0645. On each shift there I was a 35 minute meal period made up of five minutes "travel" time and 30 minutes meal time. It has been the Griever's - 3- understanding throughout that the meal period was paid time included in his eight hour shift. For security reasons CO's were required to obtain permission to leave the institution and to respond in case of an emergency during the meal period. He received eight hours' pay for a shift of eight hours' duration and was entitled to pay at the~overtime rate if he worked for more than 15 minutes past the end of his shift, that is, from 1501, 2301 or 0701. In 1982 he was told that he had not been receiving pay f~pr the meal period. A new shift schedule was estab- lished in which the three shifts span eight and one half hours each and overlap by a half-hour. They are 0645-1515, 1445-2315 and 2245-0715. The Grievor believes that this change was made to accommodate new procedures for shift changeovers and briefing and debriefing sessions. He is _," considered to be late for duty if he is not in the briefing area at 15 minutes to the hour and he takes over his as- signed post at close to the hour. He is relieved from his assigned post at close to the hour and has usually been de- briefed shortly after the hour. Instead of having to obtain permission to leave the institution during the meal period he must now sign out and in, and if. he is late re- turning to his assigned post he must report the reasons to the Shift Supervisor in writing. He has been "called out" during the meal period perhaps once per month and has not been repaid in time or given a replacement meal. If he is on hospital duty guarding an inmate, a meal is brought to him which he eats at his post. He receives eight hours' pay -4- for his shift under the new arrangement and considers that he is working overtime at the end of each shift for which he is not being paid. Kevin Wilson testified that he was first employed as a CO2 at the Toronto Jail in 1976 and became a RE- ..- habilitation Officer 2 in 1980. He was President of OPSEU Local 530, which represents employees at the Toronto Jail, until November, 1982. Informal discussions with the Super- intendent early in 1982 on the subject of shift schedules did not lead to agreement and the new arrangement was in- stituted during the spring. Previously the practice was that shifts began at 15 minutes to the hour and ended at 15 minutes to the hour, and,included a paid meal period. Time worked past the hour (e.g. from 1501) was paid at the overtime rate. That rate is now paid only for time worked past the half-hour (e.g. from 1531). He understands the Employer's position to be that CO's are not paid for the meal period but are paid their straight time rate for the ~. time worked after the former quitting time. Frances Lankin testified that ,she was employed at the Toronto Jail from the summer of 1978 to the spring of 1979. preparing attendance and overtime records for use by the payroll section. The practice then in effect was that if no overtime was involved employees signed out at 15 minutes to the hourand that overtime became payable at one minute past the hour. Lankin's testimony was confirmed by that of Charles-Smith who performed the same duties from time to time between 1979 and 1982. Smith further stated that - 5- the present practice at the Toronto Jail is that regularly scheduled shifts terminate at 15 minutes past the hour and that overtime is payable from 31 minutes past the hour. Margaret Sheppard testified that she performed the same duties as Lankin and Smith.between August and September, . - 1982, and having received no instructions to the contrary, she continued the old method of recording overtime. She is now employed as a CO2 and has been told that she is to work until 15 minutes past the hour and that overtime starts at 31 minutes past the hour. Three witnesses, employed at-the Toronto Jail, testified to the effect that prior to 1982 shifts were of eight hours' duration and are now of eight and one-half hours' duration and that overtime is only payable from 16 minutes after the end of the shift. Ian Starkie, now Deputy Regional Director, Central Region of the Ministry, testified that he was Superintendent of the Toronto Jail from May, 1977, to August, 1982, and as such was its chief administrator. He concedes that prior to 1982 CO's finished, their regularly scheduled shifts before the "posted" hour but, although he did not process overtime claims, he does not believe that over- time became payable, on the day shift.for example, from 1501, but from 1516. For,some years various exceptions to general practices in the Ministry had been tolerated at the Toronto Jail. It became his responsibility to bring practices there into line with those at other Ministry institutions. The escape of an inmate in late 1981 led to the "tightening up" of shift changeover procedures in early 1982. Later in the year it was decided to state in 6 - writing some "unwritten rules" regarding hours of work and the resulting directive (Exhibit 2) became effective on August 2, 1982. A CO's shift now starts at 15 minutes to the hour and ends at 15 minutes past the hour "if it runs its full course". A CO would be considered late if not in uniform and attending muster at 15 minutes to the hour and must remain at his assigned post until he is relieved and the proper shift changeover procedure is completed. By his calculation, CO's on the day shift are actually at work for seven and three-quarters hours--eight and one-half hours less a meal period and a coffee break. Overtime is payable from 16 minutes past the end of the shift (e~.g. from 1531). The meal period is not and has never been paid time. No work is performed by CO's during a normal meal period and. they are not under supervision except in the broad sense. of discipline and order. They normally eat in the instit- ution because of time constraints. If they were required to respond to an alarm (there are both audio and visual alarm systems) they might or might not be compensated de- pending on how close to the beginning or end of the meal period the alarm occurs. _.. Article 12 of the collective agreement~reads as .fol- lows: The present practice for rest periods in each shift shall be maintained. It is submitted for the Grievor that his regularly scheduled shift formerly covered an eight hour period; that the meal period was formerly included in his shift; - 7 - that the former practice at the Toronto Jail was to pay for the meal period and the Grievor was so paid: and that the meal period is a rest period under Article 12. It is further submitted that the change made to the Griever's regularly scheduled shift in 1982 was in violation of the collective agreement in that the practice with regard to rest periods required to be maintained under Article 12 was not so maintained. It is argued for the Employer that the Employer is entitled to eight hours' work in an eight hour shift and has not lost that right because in the past employees have left or have been allowed to leave before the end of their shift: that the meal period has never been paid time; that the mealy period is not a rest period under Article 12; and that in any case employees still complete their work within an eight hour period. It is further argued that the Grievor has failed to meet the.onus of _. proving that the present practices at the Toronto Jail regarding hours of work and the meal period, as they affect him, are in contravention of the collective agreement. The issue presented to the Board for determination is not whether the Griever is performing duties during the meal period for which he is entitled to be paid, or at what time he is entitled to be paid at the overtime rate, but is whether on the effective date of the collective agreement there existed at the Toronto Jail a practice with respect to rest periods which the Employer, in con- . .-E- travention of Article 12 of the collective agreement, has failed to maintain. We find it so inexplicable as not to be credible that for a period of years the Employer was content to pay, or was unaware of paying, employees eight hours' pay for regularly scheduled shifts consisting of seven and one-half hours' work and an unsaid meal period. We are sa.tisfied, on the evidence, that prior to the change in shift schedules implemented by the Employer in 1982 the Griever received eight hours' pay for a shift that spanned eight hours and included a meal period. The only rational inference to be drawn from that fact is that he was paid for the meal period. Art,Jcle 12 requires that not only are rest periods in existence on the effective date of the collective agreement to be maintained, but the practice with regard to their observance is to be maintained. As a consequence, .whatever rights the Employer may have in respect of normal hours of work and shift schedules, they are circumscribed by then provisions of Article 12. The term "rest period" is not defined in the collective agreement and we are given no -guidance as to whether or not such periods are intended to be taken at t,he workplace or to be paid time, or whether a meal period may be a rest period. The prevailing practice, the circumstances under which rest periods occur in' a particular case, therefore becomes~the primary consideration in determining what con- * - 9 - stitutes a rest period. To say simply that a rest period is a period of inactivity advances the matter little. We note the comment of the authors in Brown and Beatty, Canadian Labour Arbitra- . tion at pages 483-4 that with regard to both paid meal and rest periods, "few guiding principles can be distilled from ~. the awards". One case that is of assistance is Re: British Columbia Telephone Co. and Federation of Telephone Workers of British Columbia, 14 L.A.C. (2d) 239, in which the opinion is expressed that the term "relief period" is generic in nature and could include a "meal period". In- the present circum- stances and in the absence of a specific collective agreement provision to the contrary effect, we see no reason to differ- enti,ate between a paid rest-period and a paid metal period. The meal period at the Toronto Jail is a period of time, specified by the Employer as to length and timing, during which the Griever is relieved from his assigned post. The scope of the activity in which the Grievor may engage is regulated only to the degree necessary to maintain security which, given the nature of the institution, is a consideration the Employer cannot logically ignore'and which the CO's cannot reasonably oppose. It is of interest that the Board in Robertson, 469/82, recogniz~ed a difference between a require- ment that an employee notify the employer before leaving work premises and a requirement that the permission of the employer be obtained before he leaves. The .Grievor may eat or may not, may leave the institution or may not, may be --called back to duty or may not. The existence of-these alter- natives does not seem to us to be significant. The evidence - 10 - establishes that during the meal period CO's normally eat, normally remain in the institution and normally are-not called back to duty. It is to that normal condition that we must direct our judgement. There is a further consideration. The Employer, by . . the expedient of listing "expected hours of productive work exclusive of meal breaks" (Exhibit Z), has attempted to'remove a paid 'meal period from what has historically constituted the Griever's regularly scheduled shift which, prior to 1982, consisted of both periods of time spent in assigned activities and a period of time, not so spent. We do not think it is open to the Employer, drawing a distinction between the two, to decide that the Griever's shift in fact consists of only one of those elements. Under Article 7 of the collective agreement the normal hours of work per day for the Griever's classification must be no-more than eight hours. No reference is made to any non-working period those hours might include. Yet the term "normal hours of work" cannot have been intended to encompass, in any and all cir- cumstances, only hours spent in the performance of tasks (or "productive work"). Such an interpretation would render Article 12 meaningless. This view is supported by the findings of .~ the Board in Herrington, 32/77 6 16/78 with reference to the meaning of the term."normal hours of work". Our conclusions, based on the evidence before us,'ar?(.,~ the following: (1) That the Employer unilaterally altered the Griever's regularly scheduled shift so as to deny him a paid meal period as part of 'that shift; (2) That the meal period in question is a rest period .under Article 12 of the collective agreement; (3) And that the Employer did not maintain the practice that existed on the effective date of ~the collective agreement with regard tom that rest period and so violated Article 12 of the collective agreement. The grievance is .upheld/ It is perhaps superfluous to comment that our decision has its basis in the specific and unique fact situation we found to obtain at the.Toronto Jail. We are aware that the changes that are the subject of the grievance were introduced on some unidentified date or dates in 1982 prior to August 2nd when they first appeared ; in written form. In the case of the Grievor that date pre- sumably preceded the date of the grievance which, we note., was entertained without objection by the Employer. We reserve jurisdiction for the purpose of ruling on the question of compensation due to the Griever should it be pursued and the parties are unable' to agree thereon. DATED AT Consecon, Ontario this 28th day of February , 1983 - I 1% /%x& T. Traves, Member /ch -4: 1500 4: 2000 8: 1400 0 n. ^ W. J. Evans, Member