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HomeMy WebLinkAbout1984-1339.Gram.86-06-26IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (Gram) - and - I- The Crown in Right of Ontario (Ministry of Correctional Services) Grievor Employer Before For the Griever: For the Employer: Hearing: May 8, 1946 G. Brent Vice-Chairman R. Russell Member’ A.G. Stapleton Member T.G.M. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors M.M. Fleishman COUEOSl Crown Law Office Civil Ministry of the Attorney General DECISION 2 The grievance in this matter (Ex. 11 is dated December 4, 1984 and is reproduced below: That I am not being paid for the first (4) four hours worked at my scheduled shifts as per the Collective Agreement when I returned to work within (12) twelve hours according to Article 10.2. Neither party raised any objections to the jurisdiction of the Board ortothe arbitrability of the grievance. The parties informed the Board that they had agreed on all of the relevant facts andwould not be calling any evidence. The agreed statement of facts is reproduced below: * 1. At all relevant times, Mr. M. Gram was employed as a Correctional Officer 2, at Niagara Detention Csntre, Thorold, Ontario and, as such, he was covered by the Collective Agreement between the Ontario Public Service Employees Union and The Crown in Right of Ontario (January 1982 to December 31, 1983). 2. Correctional officers work a rotating shift schedule which includes three main shifts: #1 Shift - 0700 hours to 1500 hours; #2 Shift - 1500 hours to 2300 hours; P3 Shift - 2300 hours to 0700 hours. 3. The shift schedule for October, 1984, which was properly posted in accordance with Article 10 of the Collective Agreement, provided that Mr. Gram work the #l Shift on October 6, 7, 8, 11, 12, 28 and 29 tie. that he was scheduled to work from 0700 hours to 1500 hours on each of those days). Mr. Gram did work all of these shifts. 4. At the end of Mr. Gram's regular shifts for October 6, 7,' 11 and 28, he was assigned to work overtime to replace other staff members who were absent on sick leave. As a result of this assignment, MT. Gram worked overtime from 1500 hours to 2300 hours on October 6, 7 and 11, and worked overtime from 1500 hours to 2315 hours on October 28. He receivedpayment for overtime in accordance with Article 13 of the Collective Agreement (ie. 3 x 8 hours and 1 x 8.25 hours at 1 and l/2 times his basic hourly rate). 5. The attached schedule accurately sets out all of Mr. Gram’s hours during the month of October, 3 1984. [NOTE: Rather than set out the attached schedule in full we note that the schedule shows that the griever worked the following hours on the days in question: October 6 -- 0700 hours to 1500 hours 1500 hours to 2300 hours' 7 - 0700 hours to 1500 hours 1500 hours to 2300 hours* 8 - 0700 hours to 1500 hours 11 - 0700 hours to 1.500 hours 1500 hours to 2300 hours' 12 - 0700 hours to 1500 hours 28 - 0700 hours to 1500 hours 1500 hours to 2315 hours* 29 - 0700 hours to lSOO.ho~~s l Signifies overtime.1 The griever claims that he should receive one andonehalftimes his regular pay for the periods from 0700 hours to 1100 hours on October ?th, from 0700 hours to 1100 hours onoctober Sth, from 0700 hours to' 1100 hours on October 12th, and from 0700 hours to 1115 hours on October 29th for a total of 16.25 hours at time andone half. All of the hours claimed are hours where the grievor was required to report for work within twelve hours of the last time that he worked, and the premium for all hours claimed is claimed pursuant to Article 10.2 of the collective The Union's position is that the issue of the griever's entitlement has already been determined by the Board's decision in Murphy (GSB File #593/83) which was affirmedby the Divisional court in anunreported decision dated January 21, 1986. The Union submits that the fact situation in the case before us is exactly the same as that in Murphy (supra), where the previous shift worked for the purpose of Article 10.2 was a regularly scheduled shift plus overtime. It argued that even if this panel was inclined to disagree with the Murphy (supra) decision, it . z i 4 should follow the decision unless convinced that it was manifestly wrong. The Union referred us to the decisions in Bateman (GSB File #2/771 and Robbins (GSB File #165/781 as support for this proposition. The Union also referred us to the decision in Morin (GSB File #74/77) and submitted that, although 'it is distinguishable on its facts because it dealt with different circumstances, it does recognize that overtime attached to a scheduled shift should be considered as part of the scheduled shift. In support of this proposition the Union referred us to Re Milk fi Bread Drivers.Local647. and Silverwood Dairies Ltd. ---- - - (1969). 20 L.A.C. 406 (weatherill) which was also:eferred to in both the Morin and Murphy decisions (supra). The Employer candidly admitted that its task was to convince us that Murphy (supra) is clearly wrong. It said that the Board in Murphy , (supral failed to give considerationtothepurpose of Article 10.2 of the collective agreement, and in choosing not to follow the analysis in the Morin (supral case reached a conclusion which was not intended by the parties. ,It also argued that the Divisional Court awes deference to the Board on matters such as those raised in the Murphy (supra) case and that any.interpretation of the collective agreement which was not patently unreasonable would have been upheld. ' The Employer argued that Article 10.2~ of the collective agreement is intended to discourage it from scheduling shifts with less thank twelve hoursof rest between them, and to penalize it if it does. It submitted that the word "shift" as used in Article 10.2 is essential to its case and that the word must be read in the context of the whole article. It referred us to Article 10.1, which refers to the obligation to.post a schedule and provides for a penalty if the schedule is changed without sufficient notice. It pointed out that Article 10.1 makes no . : 5 reference to overtime and that this was because overtime is, by its very nature, unforeseeable and does'notresult in a change to the regular schedule. It submits, then, that the scheduling referred to in Article 10.2 refers to the scheduiing of regular work hours and that Article is a constraintonthe scheduling of those hours contemplatedin Article 10.1. It therefore asks us to interpret "previous shift" in Article 10.2 as meaning the previous shift which is scheduled yithin the context of Article 10.1. To support its argument the Employer asked us to consider that overtime is voluntary under this collective agreement; that the Employer sets the schedule referred to in Article 10.1 with the twelve hour rest as contemplated in Article 10.2; and that that twelve hour rest protection is not necessary when overtime is worked because the employee can simply refuse the work andmaintainthe twelve hour break. The Employer also referred us to the Murphy~(supra) decision and asked us to conclude that it ignores the purpose of Article 10.2 in concluding that Article 10.2 can apply when voluntary overtime is worked in connection with a scheduled shift. It also said that Murphy (supra) was wrong when it r~eferredto "common usage'withoutconsideringthe context in which the phrase "previous shift" was used, and when it interpreted "work" as including overtime. The Employer urged us to follow the reasoning and analysis used in the morin (supral case, which it said was ignored by the Board in Murphy (supra). It said that the reasoning used in Murphy (supra) ignores the "evil" addressed by the parties in inserting Article 10.2 into the agreement. It saidthatto follow the Murphy decision wouldleadto additional cost to the Employer and could give rise to unintended 10.2 Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however that if an employee is required to work before twelve (12) hours have elapsedhe shall be paid time and one-half (l-1/2) for those hours that fallwithinthetwelve (12) hours period. 13.2 i 6 premiums where the parties have entered into local agreements providing for compressed work weeks. In its reply, among other things, the Union contended that there is nothing before the board regarding any issue of twelve hours shifts in compressed work week agreements and that the parties can agree in those local agreements to deal with overtime concerns. The following portions of the collective agreement were referred to in argument: 10.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (l-1/2) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control. In this Article "overtime" means an authorizedperiodof work calculatedto the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. It is logical for us to begin our analysis by looking at the Murphy (supra) case. That case involved a fact situation which is identical in : T 7 all relevant respects to the one before us, involved the same parties as this case, and considered the same provisions of the same collective agreement. The reasons for the decision, as setoutatpages 5 and6, are: In the opinion of this Board, however, the argument of the Union is preferable in this matter. In our view, the language of Article 10.2 is clear in this regard. In our view the key to this.are the words "within twelve (12) hours of the completion of the employee's previous shift." we accept the view of the Union that the time of the completion of an employee's previous shift relates to when the actualperiodof work ended; not some notional point where the scheduled s+qa$ght-tima ended and overtime began. Common usage supports this as does the use of the word "work" later in this clause. Again, while we accept the general position that previous arbitral authority should be followed unless manifestly wrong, we do not use _ (sic) that this is applicable in thepresent case. A reyiew of the authority cited by the Crown, in our opinion, discloses that the factual basis of these cases is distinguishable from the present matter. In dealing with the application for Judicial Review the Divisional court endorsed the following on the Record: Application dismissed withcosts. we agree with the conclusion of the Board as to the meaning of Article 10.2, and that the cases cited to it were distinguishable. There is no ground for interference by the Court. If the standard which this Board is to apply in determining whether or not it will follow one of its earlier decisions is identical to that used by the Divisional Court in Judicial Review applicatitins, then clearly there-is no basis for concluding that the interpretation given to the collective agreement in the Murphy (supra) case is patently unreasonable. In Bateman (supra), at pages 9 and 10, the Board set out the following standard to apply when dealing with one of its earlier decisions: . . . 'we sre of the view that this panel of the Board should not accept or advance a wholly contradictory interpretation of the relevant provisions of the collective agreement in the absence of a demonstration that the interpretation arrivedatby an earlier panel is "clearly wrong" . . . That is to say we are of'the conviction that where one panel of this Board has'adopted an interpretation of a particular clause in the agreement, the parties can not be permitted and should not be encouraged to relitigate that determination unless the prior award is manifestly erroneous. . . . We agree with the standard set out in Bateman (supra) and with the rationale set out by the Board on page 10 of the award for adopting that *- standard. We therefore must consider whether the decision of the Boardin In so Murphy (supra) is "manifestly erroneous" or "clearly wrong". doing, while we cannot ignore the determination of the Divisional Court ' that it agreed with the decision, we must not refuse to consider whether the decision is wrong. In trying to persuade us that the decision was "clearly wrong" the Employer relied heavily on the reasoning of the Board in Morin (sups&. Neither party is arguing that Morin (supra) was wrongly decided or that the reasoning used in that case was in error. It is quite true that the facts which were before the Board in Morin (supra) were quite different from the facts before us or before the Board +-I Murphy (supra). In MOrin (supra) the griever was asked to work on his regular day off from 11:OO p.m. on the 13th to 6:30 a.m. on the 14th. He was scheduled to work and did report to work at 4:00 p.m. on the 14th. His claim was for time and one-half under the predecessor to Article 10.2 for the period between 4:OO p.m. and 6:30 p.m. on the 14th, which was within twelve hours of the time when he last was at work. The Board, at page 8, determined that the case turned on the . i I: 9 meaning of "shift" as used in the phrase'"the employee's previous shift" in the Article. It recognized that there were three possible interpretations (see page 10) which could be given to the phrase. They were: "thattheparties have used the word to refer to any period of time that an employee has worked" (page 10); "thatthe term refers to anyperiodof work whichprior toitbeing worked is predetermined in length and of a duration that would ordinarily constitute a day's work" (page 11); andthatvthe word'scheduling' in paragraph 10.3 [now 10.21 refers to the scheduling of regular or normal wdrk*liours provided for in paragraph 10.1 and, this being so, paragraph 10.3 [now 10.21 is a constraint on the scheduling of regular hours of work andonly on the scheduling of regular hours of work" (page 13). In dealing with the first possibility the Board decided that, "[iln the industrial relations communitcthe term [shift] , at a minimum, usually refers to aperiodof time thatwouldordinarily constitute a day's work" (page 10) and rejected the idea that any period of work would constitute a "shift". At page 11 it concludedthatthe parties intended the word "shift"" to apply to apredeterminedperiod of time that would ordinarily constitute,a day's work" and, while rejecting the first possibility, went on to say: . . . But we hasten to add our attraction to those cases which have held the extension of a shift by overtime hours to be properly part of the shift. See Silverwood Dairies Ltd. (1969). 20 L.A.C. 406 (Weatherill) The Board in Morin (supra) decided that the third possible interpretation which it set out was to be preferred. It stated, at page 13: . . . the phrase "the employee's previous shift" can only be a reference to a previous shift that had P 10 been scheduled within the meaning of paragraph 10.1 and, according to this view, paragraph 10.1 applies only to the scheduling of normal or regular hours of work. ,& fortiori "the employee's previous shift" must be a reference to his previously scheduled regular shift. The silverwood (supra) case which was referred to in both the Morin and Murphy (supra) decisions held, at page 409: III our view, overtime may well be part of a "regular shift". Where an employee works on a regular shift, and then continues into overtime, he is still properly said to be working on that shift. The off shift premium, if any, is payable for "all hours worked" on such shift, including the overtime - hours. . . . ,- That is the reasoning which the Board.in Morin (supra) said that it found attractive. While finding that "the employee's previous shift" as used in Article 10.2 must refer to a "previously scheduled regular shift" (seepage 11 of that decision), the Board there also indicated that it was attracted to the proposition that a "shift“, and by that we take it to mean a "previously scheduled regular shift", which was extended by overtime would include both the "previously scheduled regular" hours and the overtime hours. The Board in Moris did not find that the inclusion of overtime hours which extended a regularly scheduled shift as part of the shift was inconsistent with the meaning of Article 10.2. The Boardin Murphy (supra), when faced with a fact situation where apreviously scheduled regular ihiftwds extended by overtime, did not find that the inclusion of overtime hours-which extended the regularly scheduled shift as part of the shift was inconsistent with Article 10.2. We therefore disagree with the suggestion that the decisions in Morin and Murphy (supra) are in any way inconsistent with one another or that the latter decision in any way ignored the rational@ of the former. . . I_. ., 11 We are not convincedthatthe Murdhy (supra) decision is "manifestly erroneousn or "clearly wrong" in holding that where a previously scheduled regular shift is extended by overtime hours all of the hours actually worked become the- "employee's previous shift" for the purpose of Article 10.2. we consider that such a finding is consistent with the previous jurisprudence of this Board as well as with the arbitral authority citedtous, and that it is a finding that the language can reasonably and properly bear. Indeed it is a conclusion-that this panel can agree with, even though we clearly recognize thatthatis not the .- test which should be applied in these cases. We further consider that, even though overtime is voluntary and arises in unforeseen circumstances, ever since the decision in Murphy was made in 1984 the Em$lOyer could control its costs by taking into account the shift schedules of employees who may be eligible to work overtime hours. we also are of the view that any hypothetical problems which may or may not arise in connection with compressed work week agreements should not be dealt with by this Board other than in the context of interpreting those local agreements when and if problems arise. For all we know the parties may have dealt with this very issue in some or all of the local agreements which they entered into regarding compressed workweeks- after all the Murphy decision isroughly two years old and the Morin case, which can be read as raising the possibility of such payments, was decided in 1978. For all of the reasons setoutabove, therefore, the grievance is allowed. We order that the griever be compensated in an amount equal to the difference between "time and one-half" and the rate of pay which he actually received for working the 16.25 hours which fell within the twelve hour period as set out in Article 10.2 for the. days in question. . ‘. . i . 12 We will remain seized of the matter for the purpose of determining the amount of compensation should the parties be unable to agree on it. DATED AT LONDON, OWTARIO THIS 26th DAY OF June, 1986. G. Brent, Vice-Chairman oL-- R. Russell l A. G. StapletOn ;