HomeMy WebLinkAbout1984-1130.Brown et al.85-09-27IN THE MATTER OF AN ARBKRATI~N
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINWC ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OkELI (J. Alaka, B.‘Polfer, R. Brown)
and
The Crown in Right of Ontario
(Ministry of the Solicitor General)
Befare:
/ Ci. Brent Vice-Chairman
L. Robbim Member
0. Gray Member
For the Crievor: ~o~;m
Cavalluno, Hayes & Lennon
Barristers & Solicitors
For the Employer: M. Milich
Staff Relations Ministry of the Solicitor General
Hearirw: May 14; 1985
Cirievo&
Employer
DECISION ‘I-~-:
There are three grievances before us, each of which deals with
essentially the same subject matter, and all were heard.togetber. The
grievance of Ms..Polfer is &ted Auguet 27, 1984, and the grievances of
Messrs. Alaksa and Brown are dated September 21,1984. Each grievance
asserts:
. . . . that management is in contravention of
Article 18.01 of the collective agteement,.in its
failure to.promote the health and safety of its
employees who work rotating shift schedules.
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There were no preliminary objecticns raised ccmcerning jurisdiction or
arbitrability.
The parties filed a lcng statement of agreed facts and also called
witnesses. Before dealing with the testimony we will set out the _
statement of facts filed with us:
The parties have agreed to the following facts
for the purposes of this case:
.l. Each of the three grievers is employed by the
Ontario~ Government Protective SerViCe, Ministry of
the Solicitor General as a Security Officer 2.
2. The, Ontario Government Protective Service
provides secur&$y coverage at seven different
locations. Coverage at Queen's Park, Osgoode Sail,
125 Lakeshore (the OPP'garage and Quartermaster
stores) 90 Harbourstreet (OPP Headquarters) and 8
York Street (Special Investigations - OPP) is on a
24 hours basis, and is in accordance withone set
of schedules. There is a separate schedule for the
securiiy guar'ds assigned to the George Dreo
Building, and another for those in Bramptpr.
3.
In general, each security officer works out of
one location, although there is some transferring
betveen the downtown locations for'single shifts.
The grievors each work at Queen's Park.
4. All security officers are on a 28 day
schedule. Unless they are on special assignment,
they work three rotating shifts: days (from 0700-
~lSOO1, afternoons (1500-2300) and nights (2300-
07001. (one example of a special assignment is
"sessions duty". When the Legislature is in
session! a number of additional security officers
are assigned to Queen's Park to provide extra
coverage. These officers work only the day and
afternoon shifts, and 0nly~Monday to Friday).
5. Ea,ch security officer is assigned to one of
four platoons: A, B, Car D. Each platp.on has its
own 28 day schedule. At the time the grievance was
filed, all three grievers were assigned to 'A'
Platoon (hr. Brown has since been transferred to
'B' PlatoCrl).
6. In July, 1983, the Union filed a policy
grievance alleging a violation 'of Articles 7.2 and
9.1 of the collective agreement. This grievance
was resolvedin July, 1984 by way of anegotiated
settlement which involved a payment of maries but
did not establish a new shift schedule.
7. Following the filing of that grievance, the
employer began carsideringnew shift schedules that
would conform with the collective agreement without
requiring the payment of ovsrtime pay. A nunb8r of
discussians were held with representatives of the
Union, although the schedule that resulted was not
approved by the unfan.
8. The Ministry implemented that schedule on July
22/84. There isno dispute it has the right to do
SO, pro~vided the schedule does not violate the
provisions of the collective agreement. See
Appendix 1.
9. Pr+or to July, 1984, the schedule for A
Platoon wasas follows: (the work waekwasandis
from Sunday to Saturday)
S M T W T F S
Week #l R R A A A A A
2 A A R R D D D
3. D D D D R N N
4- N N N N N R R
R - rest days
A - afternoons
D - days
N - nights
In addition to the 7 designated rest days, a
floating rest day could be scheduled anywhere in
the 28 day cycle, which often meant the employee
only,had 1 rest day in week #3. The work weak for
these employees is 40 hours.
Under the schedule implemented in July, 1984
all employees received 2 consecutive rest days ,ti
week #3.
10 a) The post July, 1964 schedule: there was
no change in the first two weeks of the cycle. In
the third week, each security officer was given two
rest days. with the odd exception, these rest days
were consecutive. Unlike the previous-schedule,
the designated rest days in this week were not the
same for everyme in PlatOm 'A'. The rest days in
the fourth week of the cycle did not change.
b) Employees scheduled off on the Sunday and
timday of the third week hadto~ work 10 cmsecutive
days before their next day off. The first two of
the ten days were day shifts, the fhirdcouldbe a
day. afternoon or night shift, and the remaining
seven were always night shifts.
Employees scheduled off on the Monday and
Tuesday of the third week had to work nine
consecutive calendar days before their next day
off; those scheduled off on the Tuesday and
Wednesday had to work eight.
c) The other employees did notwork more than
7 consecutive shifts during the 28 day cycle.
d) The requirement to work 10, 9, or 8
consecutive days did not fall to the same employee
in avary cycle but rotated among all employees.
11. Under the basic schedule, Thursday~is
scheduled as a day off for the Platoon as a whole.
Employees whose days off in week 13 do not
incorporate Thursday are required to work m that
day in order to have 40 hours for the week. Since
the Platoon is not scheduled to work, these
employees are assigned to the other platoons as
needed. As a result of these assignments an
employee may work on any me of the three shifts on
that day. ~1" the result, an officer may actually
work three different shifts on three consecutive
days and in some cases this coincides with the
assignmnt of ten consecutive shifts.
12. This schedule meets all the specific
requirements imposed by the collective agreement
regarding work schedules.
13. a) Between July 22, 1984 and March 30, 1985 an
each cycle approximately 5 employees were required
to work lO'.consecutiVe days, '2 were required to
work 9, and 5 were required to work 8.
b) In the period fromJuly 22, 1984 to March
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30, 1985,
9 employees worked 10 caxsecuti~e shifts twicer
15 employees vorked 10 cmsecutive shifts twice1
8 employees did not work 9 consecutive shifts!
13 employees worked 9 cmsecutive shift,s mcei
3 employees worked,9 cmsecutive shifts twicet
1 employee vorked 9 cmssacutive shifts three timBSi
5 employees did not work 8 cmsecutive days;
19 employ&s worked 8 cmsecutfve days mcei
1 employee worked 8 cmsecutive days twice;
14. hollowing the *implementation of the new
schedule, there was anincrease in absenteeism.
15. Following the implementation of the new
schedule, there was an increase in overtime.
16. Article 8.1 of the collective agreement
provides:
There shall be two (2) consecutive days
off which shall be referred to as
scheduled days off, except that days off
may be non-consecutive if agreed upon '
between the employee and the ministry.
As a result of complaints about the requirement to
work ten consecutive days, and inquiries about
taking non-consecutive days off, the employer
advised them that adjustments could be made to the
schedule to reduce the number of consecutive days
worked to seven provided they aimed the attached
request. \
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17. Most empl&&es, including the three grievers,
didsign the "Request" forms and as a consequence
were able to avoid working more than seven.
cmsecutive calendar days.
The issue for this board to decide is whether
the employer iS,in violation of Article 18.1 of the
collective agreement, which provides:
The Employer shall continue to make.
reasonable provisions for the safety and
health of its employees during the hours
of their employment. It is agreed that
both the Employer and the Union shall co-
operate to the fullest extent possible in
the prevention of accidents and in the
reasonable promotio, of safety and health
of all employees.
by requiring employees to work ten consecutive
shifts, and/or by requiring them to work three
'different shifts in three consecutive days.
18.
The parties agree that the board remain seized
in the event they have difficulties implementing the
award if the board finds that the employer was in ,
breach of Article 18.1. \
The three grievers testified concerning the effect which the shift
schedule was having on them. Mr. Alaksa testifiedthathe vorked ten
consecutive days for the~first time starting September 4, 1984 and
noticed increased headaches, more severe headaches, and overall. .
frustration. He said that he began noticing the symptoms on the odd
Thursday (the third consecutive day of the work) when he had to work On
a different platoon with a different supervisor, andthatthey lasted
for three days. Be was able to relieve the headaches by taking Tylenol
or aspirin but lost sleep because of the headaches. He didnot see a
doctor. Mr. Alqksa said that he does not often get headaches: he
estimated that he has about one a month. rie said that it affected his
work because he wasnotas alertatwork, and that he was frustrated
because he was told that he had to work ten days and was upset with the
'idea.
Ms. Polfar wasasked'to work ten consecutive days in August. she
said that she finds seven consecutive days to be hard because she' does
not sleep well on nights. She said that she noticed greater fatigue 01
the ten consecutive dayseven after the first two days. She said that
she lost her appetite, her health started to fail, and she started to
get irritable.
Ms. Polfer said that she must be alert at work and that
she found that she lost her cmcentration because of fatigue. She said
that her health continued to fail after tihat right up bntil after
Christmas, and’she vas susceptible to colds, bursitis, etc. she saw her
doctor in November or December and was given medication for stress and
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bursitis and for a problem she was having~with her teeth.
MS. Polfer testified that she voluntkered to work eleven
consecutive days:after August because she needed the money from the
She also said that she worked nine consecutive days and eigh; ,- overtime.
ccnsecutive days on her occasicns. She attributed her health problems
to too much work andnotenoughtime to relax. Ms. Polferis a single
parent who has to care for her daughter. She said that she has suffered
from stress in the past and has been prescribed medication for it
before.
Mr. Drown worked ten ccmseoutive days beginning September 4, 1984.
He saidthathe always gets tired working seven consecutive days, but
that is nothing out of-the ordinary. He said that on the ten day ..-
schedule he noted increased tensip and tiredness. He said that he was
having.trouble sleeping and saw his doctor to get something to help him
sleep. Mr.Brown said-thatheneverhadhadto get medication to help \
him sleep @fore. Be was of the opinion that he was not as alert as
usual an the lplger, schedule and that this affected his work. fdr. afown
iv said that he has also had to work eight and nine days schedules.
All three employees testified that they mentianed their dislike of
the ten day schedule.to their supervisor. They all reported that the
supervisor said that he didnot like the schedule either. It would
appear that all the grievers would prefer to return to the old schedule.
Superintendent Craig, the Director of the Security Branch,
testified that in July, 1982 he instituted the schedule with the
floating rest day so that the employee could designate when he wanted to
take the day off. That schedule continued until roughly July, 1984 when
it was brought to his attention that it did not comply with the
requirements of the collective agreement. we must schedule four
platoons of twenty-five or twenty-six people to man all of the posts
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with two people for twenty-four hours seven days a week. In addition he
must ensure thateachperson has two consecutive days of rest in each,
week, and this must,be achieved with overtime kept to a minimum. In
order to comply with the collective agreement he looked at other
possible schedules and consulted an expert on scheduling in the OPP. 'He
also mgt with the Unicm representatives and asked if they could come up
withany alternatives. None of those avenues led to a schedule which
would meet all of his identified needs.
The schedole which Superintendent Craig implemented, and which led
to the ten cmseoutive working days, was not agreed to by the Union. He
said~ that he had no hard feelings.about that, but that he had no
altarnatiVe and bad to implement the schedule.
superintendent Craig said that he met with a number of people who
~expressedapreference for the old schedule, but that he explained to
them that he could not return to it. He said that most of the
complaints he receibed related to unhappiness about not getting~ the same 2-l
two days off each week, about not being able to choose when to take the
floating day of rest off, and about not bein. able to predict their
schedule. lie agreed that some employees told him that the schedule was
tiring. It was also his evidence that a number of people booked off
sick on the Thursdays when they would have had to work under a different
supervisor. He said that he did not notice any particular problem being
noted for absences after the new schedule was implemented.
Superintendent Craig testified that it was his idea to have the
employees sign the request forms so that they could have nCn-consecutive
daysoff. He said that he did this because he was getting anumber of
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requests for non-consecu~tive days off, knew that people were unhappy
with the new schedule, and concluded that for the .sake'of morale h'B
could not refuse tp grant the requests iP at all.~possibls. He initiated
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the forms so'that he could be sure that the employees had made the
request rather than having to rely cn secuid hand informatiar about the
requests.
The Unicm's.positicm is that requiring employees to work ten days
without a day offiis a breach of both of the separate but related
objectives of Article 18.1 of the collective agreement, especially where
the employee is required-to change shifts in the course of the long
schedule. It says~that putting an employee in the position of working
the schedule or having to waive her/hi.s rights under the collective
agreement is not co-operatiar to the fullest extent possible. The Union
also submits that ArtiCk 18.1 must be interpreted with the reference to
satisfactory working cmditicms in the preamble in mind. It p0int.g out
that-the grihors have each suffered discomfort and are concerned about
the adverie effect which the schedule has had on their work and that the
grievers were not alone, giren the increased absenteeism.
It is the Employer's assertion that the onus is on the Union to
show a violation of Article 18.1. It argues that a causal connection
must be established between the pattern of work and the harm, and that
we must be able to conclude definitely that the working conditions
caused the problems. The Employer submits that in e.ach oase,tha
evidence is not clear regarding cause and'effect, even though all of the
grievers were certain in their own minds of the cause, andthat there
must be substantial evidence of the causal ccmnectia. It says that the
grievers did not miss any more w~ork than usual because of the shifts,
even thouqh the level of absenteeism may have increased in the group as
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a whole.
11% the course of their submissions, the parties referred us to
Warner and Minis&y of Correctional Services, GSB File 665/82$ OPSEb - - -\
m Grievance and ~tiistiv of Coirectimal Services, GSB Files #6g/S4
6 70/841 and Forrester & Ministry of Correctional Services, GSB File
t360/83. /
Eefore dealing with the authorities cited to us, we will deal with
the facts. We agree with the proposition that in order to successfully
show that the <working ccmditicos are' the cause of the employees' health
problems the Union must establish a causal connection on balances of
probabilities. In the case before us we have no medical evidence of any
sor't to support the opinfcns of the grievers attributing their symptoms
to the ten consecutive days of work. In each case, while we do not ,
doubt that the grievers suffered the problems which they described, and
while we are not without sympathy, we are in no position to accept their
evidence that those problems are definitely attributable anly to the ten
day schedule. mr.'Alaksa*aaidthathe had sufferedthose symptoms.in
the past and seemed to attach at least as much significance to the fact
that he would have to work' with another platoon on the odd Thursday as
to the length of the working schedule. Ms. Polfer, who had what appeared
to be by far the most serious symptoms, did not begin to see her doctor
until November or December, and her personal situation is cne whidh is
not free of stress. Mr. Brown's symptoms began after seven days of
work; however, he later workedeightandnine days without those same
.symptoms developing. On the evidence before us, we would be hard
pressed to con;lude that the shift schedule was definitely the cause of
the grievers' problems.
That is not to say that we consider that'the shift schedule is
ideal. We donot consider that the Employer is faking that position.
AS a matter of co?.auon experience we can appreciate that people working:
tan days in succe5sion, with the need to work as man< as three different
shifts in that period: will experience fatigue and disruption, and that
that can lead to an increase in stress. Even though the schedule is not
ideal, it may still be a *reasonable provision"within the meaning of
Article 18.1, given/the surromding circumstances.
The evidence before us indicates that the schedule was developadto
comply with the collective agreement requirement regarding cmsecutive
days off. It also indicates that there is a minimum manpower
requirement to ensure that all posts are appropriately manned for every
hour of every day, and that the Employer made an effort to try to
develop a schedule that would meet those needs within the framework, of
its collective agreement obligations and without incurring a great deal
of overtime expense. The evidence also shows that the burden of the ten
day schedule is not something which falls on the backs of the same
employees every time it occur5 (see paragraph 101, but that it is spread
among the employees asevenly aspossible. Even though we agree that
the Employer cannot as a matter of course require employees tochoose
between waiving collective agreement tights or working an unreasonably
onerous schedule, the Employer in this case would +s acting uueascnably
if, knowing that some employees find the schedule too onerous, it
refused to grant requests to have nm-cmsecutive days off. Therefore,
if one concludes that the ten days of work is a necessary evil of the
only reasonable schedule which has been developed so far to meet the
requirements of the workplace and the collective agreement vithout
incurring excessive.overtime Costs, then, within the confines of a
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necessary evil, the Employer is making reasonable provisions for the
health of its employees.
r It was noted in the case involving.the Union grievance (supra Files,
#69/84 6 70/84) that Article 18.1 does not require the Smployer to
eliminate from the w.orkplace every possible risk to every employee. In
our view, the evidence idicates that, at most, the shift schedule could
be said to represent a possible contributing risk to the health of the
three grievers; however, in view of the evidence regarding the attempts
to devise a schedule, and in view of the fact that the grievers are able
to avoid working such shifts if they wish, we do not consider that, even
if we were to agree that a violation of the collective agreement has
been made out in this case, this wouldbe a proper case for any remedy
as sought by the.Union. We understand the remedy which the Union is
seeking to be the complete and general elimination of the current shift
schedule. There are only three grievers before us, and they represent
only themselves. This isnot a policy grievance or a group grievance.
We could not order the Employer to return to the old schedule, because
the old schedule violates the collective agreement. We cannot order the
Employer to devise a new schedule simply because there may be three
employees who are adversely affected. If the grievers had been able to
establish a breach of the collective agreement, then we would have had
to frame a remedy which gave particular relief tothem,~alone. To the \
extent that there is any discomfort caused to these three individuals,
they have effectively.worked it out for themselves by agreeing to ncxl-
'consectuva days off. Had the Employer been in violation of the
agreement, this would have been no answer to the grievances; however, in
this particular cese it does give the grievers practical relief.
For all of the reasons set out above, we conclude that the
collective agreement has not%ean violated and that the grievances
should be dismissed. In so doing. though, we do not mean to give the
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schedule OUI unqualified stamp of approval, an3 we would urge the
Employer and the &ion to co-operate with one another in trying to
devise a satisfactory schedule keeping in mind all of fhe obligations
under the collective agreement
Da!rmATLotwoB, ONTARIO THIS 27th D&TOP September ,, 1985.
'Gail Brent, Vice Chairman
"I Dissent" L, Robbins
Larry Robbins, member
IN TRE MATTER OF AN ARBITRATION
BETWEEN: MINISTRY OF TRE SOLICITOR GENERAL
- ,and - ~ 8
ONTARIO PUBLIC SERVI_CE EMPLOYEES UNION :
AND IN ‘IRE MATTER OF TliF, GRIEVANCE OF J. ALARSA, B. POLFER, AND B. BROW
0Psm II 1130184, mb/a4, 1137184
.
DISSENT ---w-w-
I have reviewed the Award of the Chairman in the above noted matter,
and regret that I am unable to concur. The claim here is’that by requiring the
three grievors to vork schedules of ten day stretches (which include in some cases
three different shifts of vork in a short period), the Employer was not taking -
re.asonable provisions ,for their health and safety. This may be a novel proposition
in that the schedule’of work itself is being challenged.here as a health hazard.
Novel ‘as this may appear, I do, however, find merit in the Union’s position.
I would ~agree that the Union’did not submit medical evidence and that
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they may not have, to use the Chairman’s vords. shown that definitely the working
conditions caused the problems experienced by the three grievors.
Nevertheless, I do feel that the evidence of the three grievors was
sufficient to show that on a balance of probability the ten day schedule aggravated
their health problems and could be said to be a stressful hazard.
When dealing.uith questions of what constitutes a health and safety
hazard, I do not agree that it is necessary to show that an employee wasactually
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injured or became physically ill. As long as one can conclude chat a certain con-
dition is likely to be detrimental to the health and safety of the employee, and to
the extent that the Employer, acting reasonably, co.uld have avoided that condition,
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then that vould be-sufficient for the Union’s claim to succeed. Even if one or more
of the grievors may not have experienced the health symptoms in question on every ,
single occur-rence of a ten day schedule , one can still conclude that the schedule is
an unnecessary health hazard.
First of all, from a common sense point of view, a schedule requiring
employees to work ten day stretches without a break (including possibly three different
shifts on three different days) is onerous end stressful to the point that it is
bewildering that an Employer would continue to require such a schedule in this day
and age. Perhaps some additional expert evidence would have been helpful. However,
the evidence of the three grievars certainly supported the common sense view of the
effects of a schedule of this nature.
I agree with the Chairman that the Employer may not’he required to
eliminate every possible risk to every employee in the’vork place. The question is
what is reasonable. What.vould a reaswable Employer’do to provide a healthy working
% situation for the employees? ‘l’he,,schedule concerned here seems anything but reasonable
from my point of view.
If.it were true ~that the Employer’s hands were tied and that there
was no other way to formulate a schedule without violating the collective agr~eement,
then that vould obviously be a strong defence. Nevertheless, the evidence was that
such a schedule could have been created and in fact did exist for a short period of
time without ten day stretches and also providing consecutive days off to the
employees. However, the Employer’s evidence was that the schedule involved
necessitated a large number of people working overtime. That is not the same as
saying that the Employer had no choice. They did have a choice. but at greater cost.
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There is nothing unique about such a situation. Frequently, the
remedy to a health and safety hazard entails some cost to the Employer.. But if it
requires extra overtime -to avoid ten day stretches, thi:s is a price that may Tot be
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unreasonable.
Finally, I would agree that the three grievers, each rectified their
situation and now do not work ten day stretches. They only did that, however, by
paying,the price of gividg up a right which existed in their collective agreement,
that is,the right to consecutive days off..:::.. This’ is not a satisfactory answer
to their problem in my view.
I share the Chairman’s suggestion that the parties cooperate.to : -
darise a satisfactoryschedule, keeping in mind all of the obligations under the
collective agreement. In the alternative the appropriate course of action a@y be
to seek to amend the collective agreement through much tighter scheduling requirements.
! RESPECTIFIJLLY SUBMIlTED BY:
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/ Larry Robbins ,/’ -
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