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HomeMy WebLinkAbout1983-0349.Mellon et al.88-03-08349ia3, 390183, 514183, 515183, 516183, 517/83, 518183, 519183, 520183, 521183, 522183, 523/83, 524183, 525183, 5?6/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BitWren OPSEU <Bernard Mellon et al) .’ Griever And The Crown in Right of Ontario (Ministry of Correctional Services) Before Employer E.B. Jolliffe, Q.C. Vice-Chairman S.R. Hennessy Member G.K. Griffin Member For the Griever - C.G. Paliare Counse I Cowling & Henderson Barristers & Solicitors For the Employer Hearing -_- M.M. Fleishman Law Officer Crown Law Office Civil February 9, 1987 -2- SUPPLEMENTARY DECISION This matter originally came before the Board as the grievances of Mr. Bernard Mellon and 14 other correctional officers at the Whitby Jail, a maximum security institution. Their claim was that they had been denied certain overtime payments by a unilateral change in practice made in memoranda issued by or on behalf of the Jail Superintendent in February, 1983, a change which was alleged to be contrary to provisions of the collective agreement and Article 2 of the agreement between the Ministry and Local 301 of OPSEU in respect of hours of work. After a two-day hearing, the Board decided in favour of the Grievors' claim, summarized as follows on page 20 of the decision, dated September 18, 1984: 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 ccsrnences when an employee works in excess of 15 minutes after the hour. It is further required by this decision that errployees .neg&tively affected by the inplementation of Exhibit 3 shall be compensated. If the parties cannot agree on ccnpensation, we retain jurisdiction to determine the amounts due. The Board's decision was implemented by the Employer .in September, 1984, However, judicial review was sought. On May 21, 1986, the Divisional Court dismissed ,with costs the Employer's application. No reasons were given, but judgment was endorsed as follows: -3- We are all of the view that for the reasons .given by Mr. Jolliffe the grievance was properly upheld, and therefore the application is dismissed with costs. Subsequently, 'the Board was advised by counsel for the Union that "the parties have attempted to resolve the monetary aspect of this award but, unfortunately, have not been successful in doing so." Counsel therefore requested another hearing ‘in order that the issue of damages can be dealt with." As agreed, the hearing was held seven months later. As explained in'the Board's original decision, employees in the Whitby Jail were among those who work a 40-hour week under the provisions of the collective agreement, but (as authorized .by that agreement) a local agreement had been made with the Ministry providing that the 40-hour work-week should be "averaged" with 12-hour shifts over a 41-week period totalling (with allowances for vacation time and lieu days) 1640 hours. For some years the practice had been to allow within each 12-hour shift a paid meal period of 15 minutes. The result was that overtime was calculated --- for example --- from 6 p.m. in the case of a shift ending at 6 p.m., so that if an employee remained on-duty until 6.16 p.m. he received an overtime payment for one half-hour. In February, 1983, however, the Superintendent decreed that there had been an administrative error and that.overtime in such a case should be calculated from -4- 15 minutes after the hour, so that payment for one half hour should not be made unless the employee was required to remain on duty until 6.31 p.m. or later. The justification for the change offered later was .that the 1%minute meal period was supposed to be unpaid and thus each 12-hour shift ended at 15 minutes past the hour, not on the hour. The Union's response was that the 1%minute period had always been paid and that the effect of both agreements was to create 12-hour shifts, not shifts of 12 and one quarter hours. It should be noted that neither agreement specified whether the meal period was to be paid or unpaid and the issue had not been discussed between the parties before March or April of 1983 when employees first became aware that overtime calculations had been changed. The merits of the grievances presented by Mr. Mellon and others were determined by the Board in its original decision, which was unanimous, and that determinat ion was much'later upheld by the Divisional Court, also unanimous. It therefore became an obligation of the Employer to revert without delay to 'its previous practice and to compensate the Grievors for the overtime payments of which they had been wrongfully deprived. The parties having determ i: failed to agree on the amount due the Board is asked to ne that issue. -5- It must first be pointed out that all records in respect of the renumeration of each employee are in the possession of the Employer, not the Board. The Employer obviously can ascertain the date on which the change of February, 1983;,was -implemented in respect of each employee, and also the date on which the Employer reverted to the former practice. On this point there is no reason whatever for the parties' failure to agree. All the facts which are not made known to the Board are in the Employer's possession and should be fully disclosed to the Union. In that way, the principal amount due to each employee could be determined by the parties. It is surely not beyond the cap'acity of the Employer's clerk or clerks to review the pay record of each employee and his quitting-times and thereby calculate the difference between the overtime he would have received under the former formula and what he received --- or failed to receive --- under the new formula decreed by the Jail Superintendent in February, 1983. Counsel for the Employer told the Board: "If you decide the principle, we can fix the amount." Only one witness was called at the supplementary hearing: the Grievor Bernard Mellon. His testimony was uncontradicted, and in some respects it was confirmed by the Employer's counsel, Mr. Fleishman. r - 6 Mr. Mellon said that pris or to February, 1983, no "shift briefing" was required: each officer would yield responsibility to his counterpart on the next shift as quickly and as smoothly as 'possible and the timing was flexible so that tlie employee could leave as soon as the changeover had been completed. However, when grievances were presented against the new overtime formula, officers were required (on completing a shift) to report to the shift supervisor in the admitting area and to remain there, "seated on a long bench," until precisely 15 minutes after the hour, at which point the supervisor (checking his watch) would tell them to leave the building. In other words, employees were being. scheduled to remain on duty for 12 hours and 15 minutes, not 12 hours. Of course, either would include a 15- minute meal period, which the Employer contended should be an unpaid meal period, which the Union contended (and the Employer eventually conceded) had always been treated prior to February, 1983, as a paid meal period. Mr. Mellon also testified that there were'"odd occasions --- very rare occasions" --- when officers had been permitted by their supervisors to leaqe early, but he added: "on those occasions, supervisors were advised --- so they told me --- they had been threatened with discipline by the Superintendent." - 7 - According to Mr. Mellon, "bench-sitting ended when the decision came from the Grievance Settlement Board." As previously stated, this account was not contradicted. Mr. Fleishman, Employer's counsel, pointed out that by strictly applying the old formula (upheld by the Board and the Divisional Court) overtime did, not become payable until 16. minutes after the hour and was not payable in the event of release at precisely 15 minutes after the hour; it had always been recognized that an officer is obliged to remain on duty until after his successor takes over for the next shift. Mr. Fleishman also argued that the time for compliance .did not begin to run until the Employer's application to the Court was registered. On the other hand, Mr. Paliare submitted that, after the employees grieved, the Employer deliberately scheduled 12 hours and 15 minutes instead of 12, and this was the very practice the Board later held to be wrong. For this reason, he argued, employees held for 15 minutes after their quitting-time were at the least entitled to payment at straight time. It was improper to keep them bench-sitting on the erroneous theory that they had already received a 15-minute meal-period: the Board later found the paid meal-period to have been standard. practice for many years. Alternatively, Mr. Paliare suggested, the employees -should be paid for 15 minutes of overtime by reason of the improper scheduling. -8- Mr. Fleishman's submission in respect of the improper scheduling was that Article 2 in the local agreement (quoted 'at page 7 of the Board's original decision) expressly scheduleb shifts of 12 hours and 15 minutes, not 12 hours, and this had been the schedule agreed to by the parties before -February, 1983. On the same page 7, however, the Board pointed out that Article 2 concluded with these words: "This work cycle will be for forty- one weeks and all staff will work a total of 1640 hours during t,his cycle." The Board furthers pointed out that "the hours in the shift cycles above are not consistent with the 1640-hour total specified in the concluding sentence.' .Mr. Fleishman also referred to the following statement quoting the Superintendent. at page 14 of the Board's original decision: Mr. Gill said he met with the Union men in 1982 and "we agreed that these were mtually acceptable hours but I also agreed with Field not to change the practice of leaving on the hour." The evidence quoted is not consistent with the "bench- sitting" routine in effect after the grievances were filed and until the Board's decision was received. In the opinion of the Board, the "bench-sitting" did not call for overtime payments unless it exceeded 15 minutes. If officers were told they could leave at exactly 15 minutes after - 9 - the hour they were not entitled to overtime. They could claim it only if obliged to remain until 16 minutes after the hour or later. Nevertheless, having regard to the Board's conclusion that the 12-hour shift was standard, and also having regard to Mr. Gill's assurance in 1982 that he would. not "change the practice of leaving on the hour," we.conclude that striaght-time was payable to all those required to remain for 15 minutes after the hour. The evidence is that this was required from the time grievances were presented in April, 1983, until the Board's decision became known in September, 1984. It should not be difficult for the Employer to,calculate the amount due during that period. A very different issue has also been argued by the parties: whether the Board should award interest on the principal amount found due. That principal would include both the straight time referred to above and the overtime payments due by reason of using the February, 1983, formula instead of the previous formula. In support of his submission that interests should be awarded, Mr. Paliare referred to the judgments of the Divisional Court in the case of Thibert and others. Shortly after our hearing Mr. Paliare made the text available to'Mr. Fleishman and - 10 - the Board. A week later Mr. Fleishman wrote the Board as follows: I am in receipt of Mr. Paliare's.correspondence of February 12, 1987 and the case enclosed therewith. In response to that submission, the employer states that an award of interest by the Board is still discretionary, and in light of the Board's reasons for decision in OPSEU and the Crown (GSB 724/83) at page 10, that such an award is not appropriate in this instance. To this Mr. Paliare replied on March 4 as follows: . I have received Mr. Fleisbnan's letter of February 18, 1987, on February 27, 1987. He asserts that an award of interest would not be appropriate. I have fully reviewed the award, including page 10, and no conment is made about whether or not it would be appropriate to award interest in a case such as the one before you. Rather, Mr. Fleislnnan has placed before you an award which seems to take issue with the result in Burns and your own decision, both of which were upheld in i the-ZZsional Court. Accordingly, the award which Mr. Fleislnnan filed with you is, in our view, of no assistance to the issue of compensation which is now before the Board. A further letter form Mr. Fleishman is dated March 10: Mr. Paliare's correspondence of March 4th, 1987 was received in this office on March 9th, 1987. My correspondence of, February 18th is apparently in need of scme clarification. .I submitted Professor Samuels' Award for your consideration because it reached a different conclusion, with the benefit of additional evidence, than did the Awards in Ehrns and Mellon. The Professor Samuels Award had the benefn the negotiatirg history of the collective agreemants before it. 'Ihus, the employer is simply stating that Professor Smels' Award, while not dealing directly with the issue of interest, may be of assistance to you in the exercise of your discretion in that regard. Please note that 'Professor - 11 - Sanmels' Award was follmed in OPSIXJ (ShepoaKd) v. The Crcurl G.S.B. file no. 510/82 (Roberts and OPSK(Tanq' iel, ZibriWvsky et al.) and the Crown G.S.B. file 876/84 et ----- al. (P. Knopf). As acknowledged above by Mr. Fleishman, the Samuels award did not deal directly with'the issue of interest. It is that issue, however, which must be determined by this Board at this point. It may be, as MK. Fleishman argued at the hearing, that the award of interest is discretionary. There must, however, be a rational justification for the exercise of a discretion one way or the other. In a number of previous cases the Board has awarded interest in accordance with the formula devised by the Ontario Labour Relations Board in Ealwell. The Board's authority to do so has been upheld by the Divisional Court more than once, notably in the case cited by MK. Paliare. There also interest had been awarded in a case involving the Ministry of Correctional Services and three correctional officers. Mr. Justice Craig dealt at length with the first issue raised before the Court: "Did the Board err in-determining that~interest is payable to the Grievers by the Crown?" Mr. Justice Craig reviewed a series of'cases decided in ,England and by the Supreme Court of Canada, the Exchequer COUKt, - 12 - the B.C.? Court .of Appeal, the Ontario Court of Appeal, and Professor Waddams' text, The Law of Damages. At Page 11 he --- expressly agreed with the following statement by Waddams. One who fails to pay prcmptly money justly due-to another does the other a wrong. 'Jhis wrong consists of delay in payment of what is owed, and is entirely separate from the question of whether the sum was cwed in the first place. . . . . . . . . Interest consists of two elements: compensation for the loss of use of money and compensation for decline in its value. Consequently, in times of rapid inflation interest rates tend to be high-~ The loss to the plaintiff who has been deprived of his money and the enrichment of the defendant who has retained it' pending the resolution of the dispute* are correspondingly increased. With interest rates of twenty per cent and litigation lasting for four years, the loss to the plaintiff caused by the delay will actually exceed the pKi&pal amount in issue. It is not surprising, therefore, that in recent times (when interest rates and delays in litigation have exceeded the figures mentioned) there has been a strong tendency towards permitting the recovery of interest. Mr. Justice Craig also referred to several Ontario statutes, and in respect of Section 19(l) of the Crown Employees Collective Bargaining Act, he concluded as follows, at page 13: The Crown is one of the "paKties" referred to in s. 19(l). neither the agreement noK the Act authorize an award of interest in express terms, but the Board was authorized to makes- a "final and binding" decision as to "any differences" between "the parties". The Board did exercise its discretion to substitute reinstatement with ccspensation for lost wages: , after deductions for incxmne received from other employment, this loss extended back over several years. For reasons stated earlier, failure to award interest in 1985 on wages lost in earlier years means, in effect, that the grievors would receive only part of the value of the loss for which - 13 - lost in earlier years means , in effect, that the grievors hould receive only part of the value of the loss for which ccmpensation was ordered. In my opinion that would amount to a failure of justice; and such a result would not have been intended by the legislature. Interest was one of the "differences" that arose between the Crown and the grievors during the arbitration. It would be almost imgossible for the legislature to enumerate all the possible- differences that might arise in an arbitration or the possible decisions available to the Board. lhe legislature has said that the Board's decision is "final and binding”; in my opinion authority to award interest against the Crown is found in s. 19(l) by necessary implication. Therefore the Board did not err in deciding this issue. Mr. Justice Fitzpatrick concurred with Mr. Justice Craig in respect of interest, but dissented in respect of another very different issue, one relating to unemployment insurance benefits. In the case before us, there have been long delays for which the Grievors+were not responsible. The Board's original decision was rendered on September 18, ~1984. The Employer applied for judicial review on February 27, 1985, but the , application was not heard and dismissed until April 1, 1986. The Union applied for a supplementary hearing on June 24 but it was not until March of the following year that written arguments by counsel were concluded. Unfortunately, further delay has ensued during consideration of the matter. For the reasons stated by the Divisional Court, we must conclude that compensatipn is payable for the delay in payment of the principal amount due to the Grievors. - 14 - .It is not in dispute that the Employer reverted to its former practice on receipt of the Board's original decision on or about September 30, 1984. The improper calculation of. overtime thus extended from February 10, 1983 (when Assistant Superintendent Cronin issued his memorandum, Exhibit 3) to September 30, 1984, and the overtime payments withheld during that period form part of the principal amount due. The Board has also held that it was equally improper to schedule employees an additional 15 minutes at the end of each shift and to detain them sitting on a bench for that 15 minutes, a practice which began when the Mellon grievance was filed April 15, 1983, and ended on orabout September 30, 1984. The Grievors are entitled to straight time for 15 minutes of each shift worked during that period, which is the second part of the principal amount due. The principal payable did not accrue fully until the end of the period in September, 1984. In respect of that period, we are awarding interest at the rate of nine percent per annum which, however, must be divided by two because the compensation due was accruing throughout the period. Such interest must be added to total compensation payable for the period and will - 15 - become the principal payable as of September 30, 1984. Interest on that total from October 1, 1984, to the date of payment should be calculated at the rate of nine per cent per annum. This decision may be summarized as follows: (1) Overtime not paid as a result of applying the February,. 1983, formula shall be paid. This constituted Part 1 of the principal payable as compensation. (2). Interest on Part 1 shall be paid for the period from February 10, 1983 to September 30, 1984 at the rate of nine per cent per annum divided by two. (3) Compensation for 15 minutes in each shift worked shall be paid for the period from April 15, 1983, to September 30, 1984 at straight time. This constitutes Part 2 of the principal payable as compensation. (4) Interest on Past 2 shall be paid for the period from April 15, 1983., to September 30,.1984, at the rate of nine per cent per annum divided by two. Dated at Toront’?f this 8th day of March , 1988 - 16 - (5) The total of Parts 1 and 2 and the interest thereon stated in paragraphs 2 and 4 above shall become total compensation payable to each Grievor as of October 1, 1984, and interest thereon, shall be payable from October 1, 1984, to the date of payment at the rate of nine per cent per annum. It is so ordered. G. Griffin - Member EBJ : sol