HomeMy WebLinkAbout1983-0349.Mellon et al.84-09-18349/83, 390/83, 514/83, 515/83
516/83, 517/83, 518/83, 519/83
520/83, 521/83, 522/83, 523/83
524/83, 525/83, 526/83
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Bernard Mellon et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
E. B. Jolliffe, Q.C. Vice Chairman G. K. Griffin Member
S. R. Hennessy Member
For the Griever: M. Wysocki
Grievance Officer
Ontario Public Service Employees Union
For the Employer: J. F. Benedict
Manager, Staff Relations
Personnel Branch
Ministry of Correctional Services
Hearings: December 14, 1983
January 13, 1984
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DECISION
On April 15, 1983, Mr. Bernard Mellon, a Correctional
Officer 2 at the Whitby Jail, presented a grievance stated as
follows:
I grieve that the new calculation of overtime Payments, which is
based on the memorandum of Mr. M. J. Cronin, Assistant Superintendent,
dated February 10783 and which manifested itself in the salary payment
of April 7163, contravenes the hours of work provision described in
Article 2 of the Memorandum of Agreement between "The Ministry of
Correctional Services and the Whitby Jail" and "The Ontario Public
Service Employees Union and its Local 301", dated December 16/82 and
made in accordance with Article 35 and Article 7 of the Collective
Agreement.
On behalf of himself and others, Mr. Mellon claimed
the following settlement:
1. An affirmation by the Management of the Whitby Jail that the
calculation of overtime payment commences at the hour provided
that an employee works in excess of fifteen minutes after the hour.
2. Restitution to all employees negatively affected by the imple-
mentation of the memorandum of Mr. M.J. Cronin dated February 10/83.
At least 14 other employees at the Whitby Jail presented
similar grievances at later dates, and all were eventually re-
ferred to arbitration. Perhaps it should be recorded that on
November 24, 1983, M. Mercer-DeSantis, on behalf of the Union,
delivered to Mr. J. Benedict, the Ministry's Manager of Staff
Relations, the following letter:
a
-2-
Further to our conversation of this morning, this will confirm
that the above cited greivance which is scheduled for an arbi-
tration hearing on December 14, 1983 is being ox&ted into a
group grievance and the cifation will be Mellon et iI.
Accordingly the following grievances will be dealt with on that
day.
Mellon, Bernard GSB 349183
Malloy, La-y 390183
Field, Graham 518183
Balazic, M. 514183
Bate, John 515183
Booker, Sid 516183
Bryans, Frederick 517183
Inche, Ronald 519183
Morrow, Frank 520183
Mulligan, Trevor 521183
Poirier, Marguereitte (Ms.) 522/83
Teeple, Doublas 523183
Topham, James 524183
watt, Paul 525183
Weber, Alison (Ms.) 526183
I have notified the Grievance Settlement Board of yhe change.
If the above is not in accordance with our discuss@n, please
contact me immediately.
The facts in this case and its background appear to
'be applicable to all the grievers, although no +ubt some would
be more affected than others.
The grievers are members of the bargaiping unit rep-
resented by O.P.S.E.U. and as such are governed~by the Agreement
between the Union and Management Board of the Cjbinet in respect
of the period from January 1, 1982, and Decembet 31, 1983, which
is still in force. ~
.:. ,i
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In this case the following provisions fn Article 13 -
Overtime are relevant:
13.1 The overtime rate for the purposes of this Agreement shall
be one and one-half (1-f) 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 per-
formed on a scheduled day(s) off.
13.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work
in excess of seven and one-quarter (7-k) hours or eight (8)
hours as applicable, shall be paid at the overtime rate.
,
Also relevant are two clauses in 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.
. . . . . . . . .
7.4 SCHEDULE A
Averaging of Hours of Work - see Appendix 3 attached
Appendix 3, referred to above, permits '"averaging"
in such fashion that hours under Schedule 4.7 may exceed 40
hours per week "at regularly recurring times of the year," but
,i ? I
,., ;’
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such averaging must over an appropriate period amount to the
equivalent of 40 hours per week. Thus, at Whitby Jail, an
arrangement formulated in December, 1982, provided for rotating
12-hour shifts of 41 members of the correctionai staff over a
?l-week period calculated (on page 4 of the Agreement itself)
as follows:
1
1524 hrs' work - 125 shifts x 12 hrs 4 1500
96 hrs' vacation - 3 shifts x 8 hrs!= 24
20 hrs' lieu days
1640
The total of 1640 hours above (as agreed by the parties)
equals 41 weeks of 40 hours.
The arrangement above had been made pdssible by
Article 35 of the Collective Agreement, which iS as follows:
ART ICLE 35 - LOCAL AND MINISTRY NEGOTIATIONS
35.1 It is agreed that all ministries may enter'into local
and ministry employee relations negotiations such that are
appropriate as not being excluded by the provision& of The
Crown Employees Collective Bargaining Act. Such negotiations
shall not be subject to the mediation and arbitration procedure
under the Act, provided however, that nothing shal'l preclude a
grievance alleging a violation of the Collective Agreement, as
provided in the said Act.
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Appendix 4 to the Agreement sets out !a so-called
"Model Agreement with respect to compressed wor!k week arrange-
ments." To be made between a Ministry and the 'Union as well as
the Local affected, it begins by referring to Articles 35 and 7
and then requires that Article 1 and 2 of the ",compressed work
week agreement" contain "detailed and specific description of
work unit and employees covered" and "detailed description of
the regular hours of work with an attached schedule where
appropriate." It then prescribes standard clau~ses in respect
of overtime, holiday payment, short term sickness plan and
vacation credits, workmen's compensation and the term of the
agreement.
Over a period of some time prior to December, 1982,
the Ministry "and the Whitby Jail" negotiated with representatives
of the Union and its Local 301 a "compressed work week agreement,"
which appears to have been executed on December'l6. It was signed
by at least three officials on behalf of the Deputy Minister and
the Jail, and by the President and two others on behalf of the
Union and its Local 301.
In this case the validity of the "compressed work‘
week agreementlv is not really disputed. What h&s been challenged
is the interpretation and application of the overtime clause
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embodied in a memorandum, Exhibit 3, issued by Assistant Super-
intendent M.J. Cronin to shift supervisors and the office manager
on February 10, 1983. Apparently it was not communicated directly
to the employees affected. It first became known to some of them
when they noticed changes in their overtime earnings. Exhibit 3
was in the following words:
CALCULATION OF OVERTIME
’
All correctional staff overtime will be calculated from
15 minutes after the hour.
. . "Cl' shift commences at 0600 and terminates at 1815,
zogovertime will be calculated from 1815.
The evidence is that prior to the Cronin memo “over-
time” began to run (in the example given above) at 1800, so
that work done to 1816 would be calculated "to the nearest half-
hour," i.e. to 1830; on the other hand, after the memo, work
done after 1800 would not be credited to the employee as over-
time until it reached 1831, at which point the nearest half-
hour would be 1845, not 1830.
The compressed work week agreement specifies in Article
2 five shifts of eight hours and 15 minutes, C shift being from
0600 ~to 1815. The difficulty is that the same article provided
for a total of 1640 hours over a 41-week cycle, the equivalent
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of 40 hours per week or eight hours per day (in a five-day week)
--- not eight and one-quarter hours per day.
The employer's position is that each shift includes
an unpaid meal period of 15 minutes or more and that it is there-
fore proper to end C shift, for example, at 1815, rather than 1800.
This is contested by the Union, which claims that a paid meal
period has always in the past been allowed at the Whitby Jail.
At this point it may be well to quote the full text
of Article 2 in the "compressed work week agreement.01 The
language therein goes to the heart of the issue in this case.
It is as follows:
ARTICLE 2 - Work Unit and Employees Covered
There shall be a rotating shift schedule incorporating the
following shifts (see appendix A): / Shift A 0800 - 2015
Shift B 1600 - 0615
Shift C 0600 - 1815
Shift D 1200 - 0015
Shift E 1000 - 2215
This work cycle will be for forty-one weeks and all staff will
work a total of 1640 hours during this cycle.
It is at once apparent that the hours in the shift
schedules above are not consistent with the 1640-hour total
: . .
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specified in the concluding sentence. The employer's explanation
is that a 15-minute unpaid meal break accounts for the difference.
The union, on the other hand, denies that there ever was an un- -
paid meal break at the Whitby Jail prior to February, 1983.
The parties voluntarily negotiated the "compressed
work week agreement" in 1982. In doing so they failed to make
express provision for meal breaks, paid or unpaid. It would of
course be absurd to conclude that the parties expected employees
to work a full 12-hour shift without a meal. A meal break must
have been contemplated. The question is: was it to be paid or
unpaid?
No witness gave any satisfactory explanation for the
failure to mention explicitly a meal break. The witness Graham
Field, who took part in negotiations, said the matter was "not
discussed," and he assumed t~hat meal breaks would be paid, "as
always in the past." The griever Bernard Mellon testified he
thought Article 2 simply meant he could be required to work for
up to 15 minutes after the hour, if needed, without becoming
entitled to overtime. Both witnesses said they take their meal
breaks in the institution, that they would have to answer any
emergency call during the break (both being members of a crisis
intervention team) and that they could not leave the premises
-9 -
during a meal break without special leave. It was pointed out
that Whitby Jail is a maximum security institution. They said
further that if the shift change is satisfactorily completed as
usual in two or three minutes they leave work on the hour, not
at 15 minutes after the hour. They made clear that they would
work if need be up to 15 minutes after the hour but their claim
is that if they work to 16 minutes after the hour -i- or later ---
0 they then become entitled to overtime.
In the "compressed work week agreement" the overtime
clause appears in almost exactly the same form as that specified
by Appendix 4 (model agreement with respect to compressed work
week arrangements) which forms part of the collective agreement.
Article 3 is as follows in Exhibit 2:
3.1 Authorized periods of work in excess of the regular working
periods specified in Article 2 or on scheduled day(s) off
will be compensated for in accordance with Article 13
(Overtime) of the Working Conditions and Employee Benefits
Agreement.
It may be noted, however, that another clause in the
model agreement set out by Appendix 4 does not appear in Exhibit
2: it is the model Article 4 (Holiday Payment).
c - 10 -
Ms. Sharon Moore was called as a witness by the Union's
representative. She has served as Senior Clerk during her five
years at the Whitby Jail and was acting office manager from
January to November, 1983. She said that in her work she was
familiar with pay and overtime records; indeed, the overtime
reports in evidence, Exhibits 7 to 14 inclusive, appear to have
been signed by her.
Ms. Moore's testimony was unequivocal: prior to February,
1983, the grievers "worked 12 hours" and "their lunch period
was paid." Their overtime, she said, was "counted from the hour."
This evidence as to the practice in 1981 and 1982 is not contra-
dicted by the employer's only witness, Superintendent Frank Gill.
It was further stated by MS. Moore that "at first we
thought.the reason for the change was the staff changeover problem."
Later, however, she was told by personnel administrators that the
new calculation became necessary because the meal period was
supposed to be unpaid.
As instructed by Mr. Cronin's memorandum of February
10, 1983 (Exhibit 3) Ms. Moore proceeded to revise overtime claims.
The overtime reports in evidence show that some were reduced and
x.0
others eliminated altogether because they involved work which
continued for less than 31 minutes after the end of the shift.
Ms. Moore also issued a brief written explanation to another
clerk, Ms. Keogh, as follows:
examule shift 0600 - 18.15
0600 - 18.30 nothing
0600 - 18.31 % hr. overtime
Prior to the change, the second line above would have
read:
0600-18.16 + hr. overtime
Superintendent Gill testified he had 25 years of
experience in corrections, the last 11 being in his present
position at Whitby. In August, 1982, due to certain misunder-
standings, he had found it necessary to issue Exhibit 5, a pro-
posed work schedule to become effective September 20, 1982.
Attachments set out the 12-hour shifts to be worked by most
officers, i.e. the 41 on a 41-week cycle. A few others, on
shifts I, J and M, such as a maintenance officer and a recreation
officer, were to work eight-and-one-half hours "with 30 minutes
unpaid meal break." That notation about an "unpaid meal break"
does not appear lx&de the shifts designated A to G inclusive ---
*. .
l
,e
l
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which were the 12-hour shifts for the 41 officers on a 4l-week
cycle. In fact, nowhere in Exhibit 5 is there any reference
to a meal break, paid or unpaid, for the 41 officers: What does
appear is the same calculation later included in the compressed
work week agreement" showing a total of 1640 hours over 41 weeks.
On the previous page, shifts are shown as ending at 15 minutes
past the hour, the same as in Article 2 of the "compressed work
week agreement."
Mr. Gill drew attention to the exception stated on
page 1 of Exhibit 5:
Correctional staff on shift rotation A, 8, C, D, E, F, G, H, &
N may, with the knowledge and consent of the I/C shift, be per-
mitted to cease work 15 minutes ahead of their scheduled guit-
ting time if in the opinion of the shift I/C the takeover and/
or work assignment has been satisfactorily completed.
A curious feature.of Exhibit 5 is that it was issued
on August 25, only a few weeks before the "compressed work week
agreement" was signed in December, but neither document refers
to the other. In fact a compressed work week had been used for
about six years, but an agreement on the subject wasnot com-
pleted until late in 1982.
Exhibit 16 was described by Mr. Gill as the "first
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agreement" and as an "experiment." It is not really an agree-
ment at all but an exchange of correspondence in which 20 officers
(a majority at the time) expressed a preference for 12-hour shifts.
There was no reference to meal breaks.
Exhibit 17 includes minutes of a meeting of the Employee
Relations Committee held on March 11, 1974. An attachment shows
five B-hour shifts, all starting on the hour and ending on the
hour.
Although Exhibit 17 was written a decade ago, it contains
two statements which may have some significance.
Item 3 on page 2 is:
Lunch Break
The staff side outlined their concern that the present .
system for Lunch Breaks be allowed to continue. It was
generally agreed that the present system could continue,
i.e. a twenty minute period per shift of the employees
own time may be used as a lunch break.
I
Paragraphs 4 and 5 of Item 7 Working Conditions (page
4) also have some relevance:
.4. The staff side outlined their desire for regular meetings
with Senior Management staff of the Institution. It was
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generally agreed that such meetings would be beneficial to
staff and management; thus, regular informal staff meetings
with Senior institutional staff will be implemented.
5. The staff side outlined their concern that directives which are
going to be posted should be discussed with the local staff rep-
resentatives prior to posting in order that they may respond
to any questions they may receive from other members. Since
this suggestion has obvious merit, directives, etc., which are
going to be posted shall be discussed with the local repre-
sentative of the C.S.A.O. prior to posting in order that he
may have meaningful information to respond to enquiries of
other bargaining unit employees.
LJnfor.tunately, the rather drastic change in overtime
calculation, decided upon in February, 1983, was not discussed
in advance with employee representatives and was not communicated
to anyof theemployees affected --- except by way of their pay
cheques some weeks later.
Mr. Gill said he met with the Union men in 1982 and
"we agreed that these were mutually acceptable hours, but I
also agreed with Field not to change the practice of leaving
on the hour."
As for the Cronin memo, Mr. Gill said: "It came to my
attention that overtime was being calculated from the hour in-
stead of from 15 minutes after. I think it follows from Exhibit
5, although it's not mentioned therein." He did not know how '
the matter had come to his attention.
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As for freedom during the lunch period, Mr. Gill said
some staff had used a lunch table on the parking lot in summer,
although the lot is outside the security area. He thought
officers were "usually free to eat without interruption."
Mr. Gill was also questioned about General Order #55,
Exhibit 18. The copy in evidence bears no date but the witness
said it was issued in 1981. Three paragraphs thereih are
significant:
Officers will be informed verbally by the Shift Supervisor or
his designate, as to when the officer will take his/her break:
Coffee; Lunch; Supper, or any other need for the officer to
leave his/her post.
. . . . . . . . .
Length of Breaks: COFFEE 10 minutes; Lunch 20 minutes; Supper
15 minutes. This is a total of 45 minutes during each shift of
duty > and those times MUST be respected.
The log-books on each post must accurately reflect the times as
shown above, or explanations mnst be logged for any deviations.
It is obvious that the second and third paragraphs
above are wholly inconsistent with the theory that officers were
to have a 15-minute unpaid meal break. There is no evidence
whatever that G.0.55 has ever been revoked or amended.
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In her argument, Ms. Wysocki said the effect of the
Cronin memo was to increase total hours in the 41-week cycle
from 1640 to 1674.5, or an average of 40.84 hours per week,
which would be contrary to Article 7 in the Collective Agree-
ment. She said that if Article 2 in the "compressed work week
agreement" is ambiguous, as it appears to be, past practice ---
as proved by Ms. Moore and other witnesses --- clearly'showed
that a paid meal period was the intent of the parties. There
was nothing in any document indicating that the parties in 1982
agreed to an important change; i.e. an unpaid meal period. Ms.
Wysocki also relied on Article 12 in the collective agreement.
For the Employer, Mr. Benedict argued that Article 2
in the "compressed work week agreement" was clear and unambig-
“0”s. The Cronin memo had been simply issued to correct mistakes
in the administration of the December agreement. Extrinsic
evidence was not relevant. He said "we agree work is to be done
for only 12 hours but officers are scheduled to be there for
12 and one-quarter hours so that they can have an unpaid 15-
minute break." On a regular basis, he said, they start on the
hour and,--- all being well --- they leave on the hour, so that
they did not normally have to work all of eight hours.
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Mr. Benedict pointed out that from 1976 to 1982 there
was no formal agreement about the compressed work week, although
it was in effect. I" 1974, he pointed out, minutes of a meeting
(Exhibit 17) spoke of a 20-minute meal period "of the employees
own time." He argued further that under the present system
officers are normally free of responsibility during a meal break
or rest period. He cited Mitteregger 481/82 (Verity) decided
November 17. 1983. In that case the Board found against the
griever's claim that he was entitled to leave the Millbrook
Correctional Centre during his meal break and if not should be
paid for the break. At Millbrook shifts were for eight hours,
not 12.
In this case,consideration must be given to Article 12
in the collective agreement, as follows:
12.1 The present practice for rest periods in each shift
shall be maintained.
The application of Article 12 was discussed in Burns
365/82 (Draper) cited by Ms. Wysocki. In that case also a"
attempt had been made at the~Toronto Jail (effective August 2,
1982) to change shift times and the calculation of overtime.
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In the Board's decision of February 28, 1983, it was said at
pages 8-9:
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 unpaid meal period. We
are satisfied, 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.
Article 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 s consequence, whatever rights the Employer may have in respect
of normal hours of work and shift schedules, they are circumscribed
by the 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 the 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
constitutes a rest period. (1)
In our view, similar reasoning is applicable in this
case. If the parties intended in 1982 to change the existing
practice, they ought to have said so in plain English when they
negotiated the "compressed work week agreement." The-onus was
on the Employer to propose'such an important change and there
wa& every opportunity to do so, since the issue had arisen at
the Toronto Jail as early as August, 1982, four months before the
(1) Application for review rejected by Divisional Court, July 12, 1984
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Whitby agreement and six months before the Cronin memo. Moreover,
the decision in Burns was issued February 28 and there was time
to consider it before implementing the Cronin memo, which Mr. Gill
says was not really completed until May.
We are at a loss to understand why an important change
in computing pay was not discussed with the Union in advance and
why employees were not notified. Mr. Gill could not say when or
how it came to his attention that there had been an "administrative
error. 10 The most charitable explanation to be given for the whole
episode.is that the matter had not received sufficient thought.
One other comment on the facts is appropriate. It
has been argued that the officers' meal period is free of respon-
sibility. Whitby Jail, like Millbrook, is a maximum-security
institution. According to the decision in Mitteregqer, supra,
"Mr. Benedict argued that...
. . . at Millbrook the meal period was an unpaid break and there
was no violation of the Collective Agreement which called for 8
hours of work per day and 40 hours per week. He argued that
management's refusal to allow the Griever to leave the Institution
was for sound practical reasons and that the refusal per se did
not constitute work in order to qualify the Griever for overtime
entitlement.
\ 1
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We agree that in a maximum security institution there
are' "sound practical reasons" for keeping officers on the prem-
ises during their breaks or rest periods. Such institutions
are very different from others and it is simply not realistic
to pretend that officers are "free of responsibility" at any time
during a tour of duty. They cannot go home or go shopping ---
as others can --1 during a break, and there are good reasons
for such a rule. They may be needed at any time and the fact
that emergencies seldom occur is irrelevant.
For the reasons given we conclude that the grievances
of Mr. Mellon and others must be upheld. It is hereby declared
that the calculation of overtime payments at the Whitby Jail
commences when an employee works in excess of 15 minutes after
the hour. It is further required by this decision that employees
negatively affected by the implementation of Exhibit 3 shall be
compensated.
If the parties cannot agree on compensation, we retain
jurisdiction to determine the amounts due.
Dated at Rockwood this
18th day of Septexdxr, 1984 E. B. Jolliffe, Q-C., Vice Chairman
EBJ:sol
S. R. Hennessy, Member