The URL can be used to link to this page

Home My WebLink About1982-0481.Mitteregger.83-11-17Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Max Mitteregger) - And - Grievor Before: For the Grievor: For the Employer: Hearing: The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L. Verity, Q.C. Vice Chairman S. Dunkley Member E.R. O'Kelly Member M. Mitteregger (in person) J.F. Benedict Manager, Staff Relations Ministry of Correctional Services October 14, 1983 - 2 - ~DECISION , In a generally worded grievance dated August 6, 1982, Max Mitteregger ~grieves "the denial of overtime payment". BY way of settlement he seeks compensation for all lost overtime. Essentially, the issue in dispute involves the status of the meal period in effect at Millbrook Correctional Centre. At the outset of the Hearing, Mr. Freedman on behalf of the Grievor made a brief opening statement and took no further active role. The Grievor then presented his own case. Millbrook is the Ministry's sole maximum security Correctional Centre for inmates sentenced up to two years less a day. The institu- tion employs approximately 90 Correctional Officers and presently houses 272 inmates (maximum capacity 260). Millbrook accommodates inmates described as "high risk offenders", the majority of whom for a variety of reasons cannot be housed in other institutions. Millbrook is a two story facility enclosed by a 22 foot brick wall and protected by numerous guard towers for additional security purposes. The Grievor is employed at Millbrook as a Correctional Officer 2 and has been so employed at that location since joining the Ministry in April, 1972. Mr. Mitteregger is an experienced Correctional Officer. - 3 - Millbrook'has three primary work shifts for Correctional Officers - No. 1 Shift 0700 hours to 1515 hours; No. 2 Shift 1500 hours to 2315 hours; No. 3 Shift 2300 hours to 0715 hours. The evidence is clear that these three shifts have been in existence for many years. The shift hours have remained unchanged throughout the years, although the actual numbering of the shifts did change in 1976. Acting Superintendent Gary Preston testified that there is a 15 minute meal break during each shift for each Correctional Officer and that generally an extra 5 minutes is allocated for Officer , movement to and from his or her place of duty. Correctional Officers eat meals either in the cafeteria where food is purchased or in the squad room. During meal break Correctional Officers are allowed to eat meals without interruption, free of responsibility and without supervision. However, during an emergency, Officers are expected to report for duty upon request even though they are on meal break. On July 29, 1982, the Grievor requested permission to.leave the Institution during his meal break. Administration refused that request but gave no reason for the refusal. In his testimqny, the Grievor surmised that the refusal related to the security of the I Institution. Similar requests by the Grievor to leave the institution during meal breaks were denied on July 30, July 31, August 1, 2, 9, 10 and 11 and September 8 and 9 respectively. - 4 - At the Hearing, the Grievor,read from a prepared statement (Exhibit 4). That statement reads in part as follows: "The main posted hours of work are No. 1 Shift 0700 to 1515 hours, No. 2 Shift 1500 to 2315 hours and No. 3 Shift 2300 to 0715 hours.... Since the posted hours of work are in excess of the hours of work specified in article 7.2 of the Collective Agree- . ment, I always assume that C.O.'s were entitled to leave the Institution for 15 minutes during their meal break.... I discussed the matter of continuous denial to leave, with then union steward, Mr. Mel Barnes. On August 3rd, 1982, Mr. Barnes arranged for an informal discussion with then Deputy Superintendent Mr. G. Preston. At the meeting, I informed Mr. Preston that since the posted hours of work are of 8 hours and 15 minutes duration, I should be entitled to leave the Institution for 15 minutes during my meal break. Mr. Barnes and mvself also oointed out that in the Ministrv Manual of Standards and Procedures, Section A-6 page says: 3 it- 'Employee Meals If the time anoted fo,r a meal is not included as .-- *.. * part ot a statt memoers nours or auty, ne may leave the Institution to take a meal, except on those occasions where the Superintendent, for valid reasons, requires him to remain on the premises.' . . . . . . It is my understanding that Management does have the right to refuse staff members to leave the Institution during their meal break. If, however, for security reasons or any other reason it is impractible to let C.O.'s leave the Institution midway of a shift to take a meal, then the time allotted for a meal should be included as part of a staff members hours of duty. Therefore, I feel my regular shifts since July 29th, 1982 should have been 07.00 hours - 15.00 hours, 15.00 - 23.00 hours and 23.00 to 07.00 hours and I should be entitled to compensation at overtime rate for all time that I was re- quired to stay at work in excess of 8 hours." - 5 - \ : 3 In his evidence, the Grievor stated that he took a one-half hour rest period or meal break which he felt allowed ,~ ample time for him to leave the institution and return within the one-half hour. He admitted that meals were taken without interruption and that the most recent emergency during a meal break was approximately 11 to- 2 years previous. The Grievor's evidence that the shift hours were originally 0700 to 1500, 1500 to 2300 and 2300 to 0700 was unsu'pported by any other evidence. Mr. Benedict argued that at Millbrook the meal period was an unpaid break and there there was no violation of the Collective Agreement which called for 8 hours of work perday and 40 hours per week. He argued that management's refusal to allow the Grievor to leave the Institution was for sound practical reasons and that the refusal per se did not constitute work in order to qualify the Grievor for overtime entitlement. Mr. Benedict referred to the Grievance Settlement Board Award of Burns and the Ministry of Correctional Services, 365/82 (Draper) (presently under judicial review) which stands for the proposition that a meal period is a rest period within the meaning of Article 12 of the Collective Agreement. Alternatively, it was aruged that if the Courts held that a meal period was not a rest period, there was nothing in the circumstances of the instant Grievance that would attract any overtime entitlement. - 6 - In a determination of this issue, the following extracts of the Parties' Collective Agreement bear repetition. "ARTICLE 7 - HOURS OF WORK 7.2 SCHEDULE 4 and 4.7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day." "ARTICLE 12 - REST PERIODS 12.1 The present practice for rest .periods in each shift shall be maintained." "ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (15) 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 add- ition to the regular working period, or performed on a scheduled day(s) off." Having reviewed the evidence, this Board is unable to conclude that the Grievor's claim is supportable. The present hours of work on each primary shift at Millbrook have been in existence for an extended period of time dating back at least to 1965. 'There is no evidence to support the Grievor's allegation that the hours of work on a primary shift have changed in any significant respect since the commencement of the Grievor's employment in 1972. In fact, ~the evidence is quite to the contrary. The meal break arrangement at Millbrook is also of long standing and it is clear on the evidence that the meal break is an unpaid period. - 7 - The M inistry argued that overtime could be paid only periods of work" w 'ithin the meaning of Article for "authorized 13.2 and that Correctional Officers were not working during meal break. In private sector Arbitrations, most Arbitrators are of the view that the terminology "work", "hours worked" and similar phrases do not require an employee to be in the actual performance of his regular duties. See Re Hamilton Street Railway Co. and Amalgamated Transit Union, Local 107 (1981), 1 L.A.C. (3d) p 355 (Shime); and Re Union Gas Ltd. and Oil, Chemical and Atomic Workers, Local 9-14 (1979), 23 L.A.C. (2d) 235 (Kennedy). Simply stated, the test as to whether an employee is working or deemed to be working during the course of a meal break is whether or not responsibilities continue during that period. The issue of continued responsibil.ity during a meal break is a factual consideration which must be based on the evidence presented. Here, the actual activity of a Correctional Officer during a meal time is an irrelevant consideration. Also an irrelevant consideration is whether or not a Correctional,Officer is permitted to leave the Institution during a meal break. In the instant Grievance, all of the evidence incl'uding that of the Gr Officer at Mil .On the rare oc a Correctional evor is consistent with the fact that a Correctional brook has no responsibilities during his meal period. asion when there is an emergency during a meal break, Officer is expected to return to work upon request and is subsequently paid accordingly or alternatively given time in lieu thereof. Here, it cannot be said that the Gri‘evor was under the In the result, we find that the Grievor has failed to establish that he is entitled to overtime payment. At Millbrook', the lunch break is an unpaid per iod of 15 minutes duration with a 5 minute grace period, where applicable, per shift. Accordingly, there is no violation of the 8 hours of work per day in the Collective Agreement and no entitlement to overtime payment. The wording of Article 13.2 entitles employees to receive overtime pay- ment where on a scheduled working day the authorized period of work exceeds the normal hours. Accordingly, this Grievance must be dism - a - control of management or was considered on duty during meal break. jssed. 1983. DATED at Brantford, Ontario, this 1 7 th day of November, A.D., _-..-. 1 ,&T -^I t AZ-. .- . . ;~ I Verity, Q.C. -- VSce-Chairman E.R. O’KellY --