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HomeMy WebLinkAbout1983-0724.Union.86-04-30Between: Before: 724183 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) : Grievor - and - The Crown' in Right of Ontario Employer (Ministry of Transportation and Cosnminications) J. W. Samuels Vice-Chairman E. McVey Member F. T. Collict Member For the Grievor: K. Waisglass Counsel Ontario Public Service Employees,Union (April 9, 1985) P. Sheppard Counsel Barrister & Solicitor (March 6, 1986) For the Employer: M. Fleishman Counsel Crown Law Office'Civil Ministry of the.Attorney General April 9, 1985 March 6, 1986 i * 2 The Union alleges that the Ministry has violated Article 12. I of the collective agreement, which provldes: The present practice for rest periods in each shift shall be maintained. The case concerns twelve Traffic Patrollers who run the Mlnlstry’s Emergency Patrol in the Metro Toronto Area--a service provided on the provincial highways within the Metropolitan Toronto area, which assists the motoring public and the Ontario Provincial Police by coming to the aid of stranded motorists, helping in case of emergency, and like activities. The Patrol was established in 1963, and from at least November 1971 to December 1982, these Traffic Patrollers worked eight-hour shifts, taking their meal when they could, and they were pafd for eight hours. In December 1982, they were asslgned to work eight and one-half hour shifts, during which they were to take a definite 30-minute meal break, and they continued to be pald for eight hours. The Union claims that this Is a violation of Article 12.1 of the collective agreement, and requests a declaration to this effect, and compensation for the half-hour overtime per shift worked since the date of the grievance (June 14, 1983). It should be emphasized that this grievance concerns the Traffic Patrollers in the Metro Toronto area. The Ministry does offer the servfce elsewhere. In the Burlington area, there are three Patrollers on eight-hour shifts, who are paid for the eight hours and who take a meal break, usually (though not always) at their office. The parties agree that this represents an inconsistency in the Minfstry’s practice. The evidence at our hearing shows that the change in the length of the shift did not make a great deal of difference in the way the meal break was i ;i 3 treated by the Traffic Patrollers. This appears to be a dedicated and very experienced group of men, who take their meals when it Is convenient during the shift. Sometimes they eat in their trucks, though this occurs less often than it used to, largely because there are fewer adequate roadside parking places. Sometimes they catch a bite to eat in a fast food spot near the highway. Sometimes they return to their headquarters and take lunch in the lunchroom,. Before the shift change, it was clearly understood that they were on call for the eight hours., If a man was going to leave,his truck to enter a restaurant to eat, he had to let the dispatcher know where he could be reached, After the shift change, it is clear.that all management wanted was for the Patroller to sign off duty when he went to lunch, and sign back on after.lunch. indeed, for a variety of reasons, management wanted the Patrollers to be free of responsibility for the half-hour of the meal break. Insofar as management is concerned, now there is no need for the Patroller to let the dispatcher know where he can be reached during his meal break. However, this message was not clearly communicated to the Patrollers, Our witnesses still keep the dispatcher informed of their whereabouts, and still consider themselves on call throughout their shifts. This is particularly the case when they return to the office lunchroom, and it is the dispatchers’ practice to relay messages to’the Patrollers during their lunch breaks, and on occasion to interrupt their lunch and call them out on an emergency. In these circumstances, the Union argues that; (I 1 the practice for meal breaks has not been maintained; (2) meal breaks are “rest periods”; and therefore, (3) the ‘practice for rest periods- has not been maintained, as is required under Article 12.1. ,’ ‘I I c 4 On the tlem of . . Rest Periods In the Colle ct lve Aare A. Juriswudence In suppojt ol the proposltlon that meal breaks are ‘rest periods’, the Union relies on Bums 365/82. In its decision in Bwns, the Board decided that the term ‘rest period in Article 12. I included a meal period. The term ‘rest period’ is not defined in the coilectlve 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 prevarllng practice, the circumstances under which rest perlods occur in a particular case, therefore becomes the primary consideration in determining what constitutes 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, Canauian LaDouf ArWtfat/on at pages 403-4 that with regard to both Paid meal and rest PerlOdS, ‘few guiding principles can be distlfled IfrJm the awards’. One case that is of assistance is Re. British Co/uv&ia Teeltp%w Co. 8ndFe&r&on of Telephone WoMers of British Cokm?&?iq ML. 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 circumstances and In the absence of a speClfiC collective agreement provision to the contrary effect, we see no reason to differentiate between a paid rest period and a paid meal period. (at pages a to 9) Several points should be noted. in the first place, the Board was quite clear that the term ‘rest period’ is not free of ambiguity. indeed, the Board noted the lack of guidance In the collective agreement as to whether or not I 5 the term included a meal period. Secondly, it is apparent that the Board heard no evidence concerning the negotiating history of Article 12.1. The award was appealed to the Divisional Court, and the Court upheld the award, noting on the record that ‘In our opinion the Board gave an interpretation to Article 12 which it could reasonably bear’. And the &WE decision concerning Article 12.1 was followed without comment in I%?//HJ, 5#/83 et al (at pages 17 to 181, and is mentioned, though not actually relevant, in iYiH&-~?~f, 401182 (at page 5). Thus for us, Article 12.1 stands as a prOViSiOn which is not Clear on its face (does the term “rest period” include a meal break?), and which has been interpreted by this Board, but without adequate consideration of the negotiatlng history. In these circumstances, we allowed evidence concerning this negotiating history. 8. Neaotiatina History We had the benefit of the testimony of Mr. W. Gorchinsky and Mr. A Todd concerning the history of Article 12. I. Mr. Gorchinsky is DireCtOr of Staff Relations for the Civil Service Commission and was intimately involved in negotiations with the Union and its predecessor since 1972. Mr. Todd has been Chief Negotiator for the Union since ,1973. They explalned the history of the bargaining process, and in particular what is now Article 12.1. Before 1972; there was no collective agreement. Regulation 749 to Th &Vic Serv&e Act ithen R.S.O. 1970, ch. 386, as amended) set out tlie ‘. working conditions and employee benefits. The Civil Service ASSOCiatbn of Ontario had bargained for years with the Provincial Government over these provisions,,and their agreements resulted in changes to the regulations from time to tlme. If the negotiatlons failed, there would be resort to arbitration. In 1971, an arbitration award established the working condf t Ions and employee benefits to December 3 I; 1973, and these were incorporated in the regulations. 6 In 1972. Tth? G-own Employees Colk?ctive Bargaining Act was enacted. Henceforth, there would be collective bargaining in the public service, and the matters covered by regulations under T~prm3/icSemce Act were now negotiable. In April 1974, the Civil Service Association of Ontario presented its first proposals under the new system. At that time, the current regulations under The Public Service Act covered hours of work in section 9 (I) (2) (3) where the specif lcatlons for a classif ied position In the administrative staff call for a normal working day with regular hours, the hours worked shall be 7 l/4 hours per day and 36 I /4 hours per week performed during the hours as determined by the deputy minister beginning not earlier than 8:OO a.m. and ending not later than 500 p.m. There shal I be a recess period for Iunch of not more than I I /4 hours taken at such times as the official in charge with the approval of the deputy minister determines. Where the deputy mlnlster does not determine the hours during which work is to be performed, the hours shall be from 8: 15 a.m. to 4130 p.m. with one hour for the recess period for lunch, for the months of July and August of each year, and shall be from 8:30 a.m. to 500 p.m. for the remainder of the year with 1 l/4 hours for the recess period for lunch. There was no provision in these regulations for a paid meal period, and no provision for-rest perlods’. Furthermore, thls provisron did not cover the Traffic Patrollers and others who worked a 40-hour week. In its 1974 proposals, the CSAO requested that the 36 I/4 hour work week should be ‘exclusive of meal periods’ (Article 9. IL and that ‘the hours of work shall be inclusive of break periods- (Article 9.2). For those employees with a 4O-hour work week, the Association requested that ‘the hours of work shall be inclusive of meal periods and break periods’ (Article , 7 9.3). And then the Association proposed a new provision~dealing with ‘rest periods”. The proposed Article la. I read: During each tour of duty, employees shall be entitled to two (2) rest periods which may be taken away from their immediate work area. The first Period will be given between the employee’s starting time and his first meal period; and the second between the end of the first meal period and his normal finishing time. It is critical in this proposal that the contemplated ‘rest periods” were clearly differentiated from the ‘meal period”. The parties would have to go to arbitration before settling the agreement, but on the way, they reached agreement on some matters. Article 7 set out the hours of work for employees, and made no mention of paid meat periods. Article 15.1 provided for ‘rest periods’, in prec&iely the same language as we now have it in Article ,12.~1. Before,the Board of Arbitration, chaired by H.D. Brown, in spite of the agreement between the parties on some of the matters, the CSAO proposed a ,provision dealing with “rest periods’. it was the 1974 proposal quoted above (Article 18.1). Again, it is critical that, in this proposal, the Association was distinguishing clearly between the contemplated ‘rest periods’ and the ‘meal period”. Managements response to this proposal was the following: The CSAO’s request for a formalized provision of two rest periods (duration unspecified) could result in a further. increase to payroll cost of at least $36,000,000- No public servant Is now deprived of “coffee breaks’ or ‘rest periods: as are required by the employees, Quite apart from the provision of service to which the taxpaying public is entitled, the public service is not like an industry conveyor belt assembly operation, where the entire operation can be controlled and closed for a specified rest period. The administrative problems (as well as cost) involved in ‘policing’ the rest breaks would be virtually unmanageable. ‘._ I - The employer asks that the informal practice now enjoyed by employees be continued and asks that the Board reject this proposal by the GAO. And the Board of Arbitration accepted management’s posltion, awarding (on page 9) ‘the present practice for rest~period In each shift shall be maintained. Thus, throughout ail of the negotiations and argument before the Board of Arbitration, It was absolutely clear that there was a distinction between the proposed ‘rest periods’ and the ‘meal perifl. Before the first collect Ive agreement was reached in 1975, the CSAO became the Ontario Public Service Employees Union. The first collective agreement was slgned on March 12, I976 by Mr. Gorchlnsky for the Management Board of Cabinet, and by Sean O’Flynn, Andrew Todd, John Offler and J.H. Fuller for the Union. Article 7 provided for the hours of work in much the same language as now exists. There were no paid meal periods. Article 15. I provided for ‘rest periods’ in precisely the same language as we now have in Article 12.1. in his testimony at our hearing, Mr. Todd suggested that the term ‘rest periods’ was intended by the Union to include ail responsibility-free time, regardless of what the employee did during the period, and would include the perlod durtng which the employee had a meal. However, on its face, the language in the collective agreement was clearly derived from the earlier agreements with the CSAO, and it is inescapable that the term ‘rest periods’ did not include the ‘meal perifl. All of the negotiating history thusfar demonstrates that the ‘rest periods’ were considered to be breakS between the start of the shift and the meal perlod, and then between the meal period and the end of the shift. In 1976, the Union proposed that there be a definition of ‘meal breaks’ and that ‘no employee shall work longer than five (5) hours without a meal breK. As well, the Union again proposed the ‘rest periods- provision originally requested by the Association in 1974, and rejected by , 9 the Board of Arbitration. But no changes were made in the hours ,of work (Article 7) or rest period (Article 12.1) provisions in the collective agreement for January 28, 1977 to January 3 1, 1978: Again, Mr. Todd suggests that the Union did not intend to’distinguish between ‘rest periods’ and the ‘meal break’, rather that both terms were merely different ways of describing the same thing---responsibility-free time. However, the language used in the Union proposals clearly suggests to the reader that a distinction is being made and it was reasonable for the employer to reach the understanding that the Union meant something different by the term “meal break’ from the term,‘rest periods”. In 1978, the Union proposed that Article 7 be amended to provide that ‘an employee shall be entitled to a meal break at or near the mid point of his shift, away from his assigned work area’ and that Article 12. I be amended to provide that ‘an employee shall be entitled to a paid rest period away from his assigned work area at or near the mid point in the first half and at or near the mid point in the second half of his shift”. But no changes were made In the next collective agreement. Again the language of these proposals suggests clearly that the Union understood ‘meal break’ to be something different from a ‘rest period. in 1979, the Union proposed that Article 7 be amended so that the normal wo.rk day would be “inclusive of a meal period’, and again proposed the amendment to Article 12. I of the year before. Neither of these Proposals found their way into the collective agreement for January I, 1980 to December 3 1, t 98 I. No amendments to Artlcle 12. I were proposed for the next agreement, which is the one still In effect. Article 7 provides for the hours of work, and makes no mention of a paid meal period, and Article 12.1 deals with ‘rest periods’. This history demonstrates clearly that a distfnction‘was made in the negotiations between ‘rest periods’ and,the “meal break’. And while a party is not bound by proposed language w,hich is not ultimately agreed between . , 10 the tW0 partles, the language used in MgOtlatiOnS does aSS1S.t In understanding what ismeantbywordswhichdofindtheirway into the collective agreement. in this case, the words ‘rest periods’ are in the collective agreement. During the negotiations, these words were distinguished from the ‘meal break’ and therefore the words ‘rest periods’ cannot include the ‘meal break’. Thus, we conclude that we must reverse the Bums decision. The Board in Bums did not consider the negotiating history in order to interpret the ambiguous words ‘rest periods’. The earlier decision was based on the evidence before the Board at the time. We now know that this evidence was incomplete. Having heard the missing evidence, we are in a position to know that Bums was wrong. Article 12. I preserves the ‘present practice for rest periods in each shift’, but this does not include the practice for ‘meal breaks’. Our analysis thusfar leads to the COnClUSiOn that the Ministry had the right to introduce an unpaid ‘meal break’ into the Traffic Patrollers’ day. We are left with a further argument by the Union---that in fact there Is no real ‘meal break’, because the Patrollers are not responsibility-free during the period, They have continued to keep the dispatcher informed of their whereabouts, and have continued to consider themselves on call throughout their shifts. And the dispatchers relay messages to the Patrollers during their lunch breaks, and on occasion interrupt their lunch and call them out on an emergency. Furthermore, throughout the day, the Patrollers remain responsible for their Ministry vehicles. This is analogous to the grievor in Anwyll, 466/83, who was found to remain on duty, not on tIYM?l time, While drlvlng home after repairing fire alarmS. In Andy//, the Board said (at page 7): Whether driving or not, the grievor is clearly responsible to the Ministry for the vehicle and its contents. Whether driving or not,.the grievor bears a certain responsibility to get the vehicle back safely. . . . . . . . . . . At a gas station, or a coffee stop, the grievor would have equal responsibility to see that the vehicle and its contents were safe. Surely the Ministry would not want the grievor to relax and turn a blind eye “because he wasn’t at work any longer, he was responsibility-free”., His responsibility would continue until the vehicle, equipment and parts were safely returned. The Patrollers’ situation is analogous to the~grievor in Any~//. The job necessarily involves continuing responsibility throughout the day. Even if they are required to get off the road for half an hour to eat and relieve the Stress of the job, they are not responsibility-free. The traffic and emergencies don’t wait while a Patroller eats. The vehicle is always there, and must be taken care of. This is not to say that an employee is necessarily entitled to Payment for all~hours during which he is responsible for a Ministry vehicle. Clearly, there are circumstances in which it can be said~ that the employee is ‘responsible” for the vehicle, but even so he is not at work. Consider, for example, an individual who is assigned a government vehicle for three days during which time he must visit several Ontario cities and remain inhotels for two nights. Perhaps, at all times, the employee remains responsible for the government vehicle, because it has been assigned to him for three days. However, the employee may be considered “responsibility-free” during the nights and evening and meal times, in the sense that he is not on duty. in short, responsibility for the vehicle is not sufficient alone to entitle an employee to payment from the employer. in our case, the Patrol’lers are not only responsible for their vehicles during the times they eat, but their Job necessarily InVOlVeS COntinUing responsibility throughout the day to assist with emergencies. 1 . .,_ ~ . 12 in these ctrcumstances, we find that the Patrollers have worked an extra half hour per day since June 14, 1983, and should be compensated for this overtime labor. The grievance is allowed. We will reserve our jurisdiction to determine the Particular compensation due to any Patroller, if the parties are unable to agree on this themselves. Done at London, Ontarlo, this 30th day of April , 1986. iiA---,Jq - E. McVey, Member gq f5$&@ F. T. Co1 I ict, Member