FPSLREB Decisions

I. Individual grievances referred to adjudication

1 On May 11, 2005, Chris Bucholtz and Donald Boucher filed individual grievances alleging that the Correctional Service of Canada (“the employer”) violated the allocation of overtime provisions of the collective agreement signed by the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (“the bargaining agent”) for the Correctional Services bargaining unit (CX) on April 2, 2001 (“the 2001 collective agreement”). Doni Hunt, on May 28 and July 20, 2007, and Brian Hitchcock, on September 28, 2007, filed similar grievances alleging that the employer violated the collective agreement signed by the employer and the bargaining agent for the CX bargaining unit on June 26, 2006 (“the 2006 collective agreement”). At the time of their grievances, Messrs. Bucholtz, Boucher and Hunt were correctional officers at the Millhaven Institution in Bath, Ontario, and Mr. Hitchcock was at the Joyceville Institution.

2 The grievors allege that the employer bypassed them by not calling them to work overtime. On the specific dates mentioned in the grievances, Messrs. Bucholtz, Boucher and Hunt were not called to work overtime because they would have been paid at the double-time rate. The employer had a practice or a policy to first call employees who would be paid at the time and one-half rate for overtime. Mr. Hitchcock was not called to work overtime at double time on September 8, 2007 because the employer called another employee who was also paid at double time. Messrs. Bucholtz, Boucher and Hitchcock are asking to be paid eight hours at double time, and Mr. Hunt, for his two grievances, is asking to be paid a total of 12.5 hours at double time.

3 The relevant clauses of the 2001 collective agreement read as follows:

21.10 Assignment of Overtime Work

Subject to the operational requirements, the Employer shall make every reasonable effort:

(a)      to allocate overtime work on an equitable basis among readily available qualified employees

…

21.12 Overtime Compensation

Subject to Clause 21.13, an employee is entitled to time and one-half (1 1/2) compensation for each hour of overtime worked by the employee.

21.13 Subject to Clause 21.14, an employee is entitled to double (2) time for each hour of overtime worked by him or her,

(a)      on the employee's second or subsequent day of rest, (second or subsequent day of rest means the second or subsequent day in an unbroken series of consecutive and contiguous calendar days of rest)

…

4 The relevant clauses of the 2006 collective agreement read as follows:

21.10 Assignment of Overtime Work

The Employer shall make every reasonable effort:

(a)      to allocate overtime work on an equitable basis among readily available qualified employees

…

21.12 Overtime Compensation

Subject to Clause 21.13, an employee is entitled to time and one-half (1 1/2) compensation for each hour of overtime worked by the employee.

21.13 Subject to Clause 21.14, an employee is entitled to double (2) time for each hour of overtime worked by him or her,

(a)      on the employee's second or subsequent day of rest, (second or subsequent day of rest means the second or subsequent day in an unbroken series of consecutive and contiguous calendar days of rest)

…

5 There is a minor difference between the 2001 or the 2006 versions of clause 21.10 but for the purpose of these grievances that minor difference is not significant.

II. Summary of the evidence

6 The parties agreed on most of the facts during the hearing. They jointly submitted a written statement of facts. The grievors also adduced in evidence the local overtime procedures or agreements, the overtime calling sheets, and the volunteer overtime reports relevant to the grievances. Mr. Hitchcock and John Liggett testified for the grievors. Paul McFadden testified for the employer. At the time of Mr. Hitchcock’s grievance, Mr. Liggett was a correctional officer, and Mr. McFadden was the correctional manager (CM) in charge of calling officers for overtime. Both worked at the Joyceville Institution.

7 At the time of the grievances, comparable written procedures were in place at Millhaven and at Joyceville for the allocation of overtime. The bargaining agent at the local level generally agreed that those procedures constituted an equitable basis on which to allocate overtime among correctional officers, with one exception: the employer offered overtime first to correctional officers who would be paid at time and one-half. The bargaining agent disputed the provision which provided that overtime would be offered to those paid at double time only when the employer exhausted the list of officers paid at time and one-half. According to clauses 21.12 and 21.13 of the 2001 and 2006 collective agreements, overtime is normally paid at time and one-half, except when the employee works overtime on a second or subsequent day of rest.

8 The first step in the procedures for the allocation of overtime was to record in writing the availability of correctional officers. The officers would indicate, on the list applicable to their classification level, for the upcoming seven days, the days and shifts for which they would be available for overtime. The form also included the officer’s regular shift and hours, the dates of the officer’s days of rest; the officer’s phone number, and the total number of overtime hours that the officer had worked during the applicable quarter. Officers started a quarter with zero hours of overtime, and from there, every hour of overtime was compiled. The quarters were as follows: January 1 to March 31, April 1 to June 30, July 1 to September 30, and October 1 to December 31.

9 According to those procedures, the number of overtime hours worked by officers in a quarter was constantly recalculated. Overtime was offered to readily available officers, starting with the officer who had the fewest number of overtime points during a particular quarter. However, officers on their first day of rest (time and one-half) would be called first. The employer would then call officers on their second or subsequent day of rest (double time). At Joyceville, each hour of overtime was recorded as one overtime point. At Millhaven, a full shift of overtime was awarded eight overtime points, a half-shift four overtime points and one hour of overtime worked one point. 

10 For all the overtime situations grieved, the parties agreed that the grievors were qualified and available for the overtime.

A. Evidence specific to Mr. Hitchcock’s grievance

11 Mr. Hitchcock had indicated that he was available to work overtime for the evening shift starting at 15:00 on September 8, 2007. Had he been called for that shift, he would have been paid at double time. That day, Mr. Hitchcock worked the day shift. At the end of his shift, around 15:00, he stopped in at the CM’s office and reminded him that he was available to work overtime on the evening shift.

12 Shortly after 15:00, the CM was advised that a correctional officer had just been injured at work and that a replacement was needed for the evening shift. Another correctional officer covered that officer’s post while the CM tried to find a replacement for the entire evening shift. At that time, the CM knew that Mr. Hitchcock had already left the institution. However, the CM had just seen another officer, Mr. Carew, and he thought that Mr. Carew was still within the walls of the institution, making him available to fill in for the injured officer. The CM called Mr. Carew’s cellular phone number. Mr. Carew answered, but he had already left the building. The CM offered Mr. Carew overtime for the entire evening shift, and he accepted. A few minutes later, he was at the post to which he had been assigned.

13 The CM knew that, before the evening shift of September 8, 2007, Mr. Carew had 111 points of overtime and that Mr. Hitchcock had 98.5 points. However, he thought that Mr. Carew was still in the institution. He testified that had he known ahead of time that he would need an extra officer for the evening shift, he would not have called either Mr. Carew or Mr. Hitchcock but rather Officer Hawes, who would have worked at time and one-half. Had the CM called Mr. Hitchcock instead of Mr. Carew for that overtime shift, it would have taken 10 to 15 minutes longer for Mr. Hitchcock to reach the post because he had left the institution before Mr. Carew.

B. Evidence specific to the other grievances

14 Messrs. Bucholtz, Boucher and Hunt were not called to work overtime on specific overtime shifts because other correctional officers were available to work those overtime shifts at time and one-half. The three grievors would have been paid at double time had they worked those overtime shifts.

15 The grievors’ representative suggested that the only way to demonstrate inequity in overtime distribution among correctional officers was to examine, for each grievor, the impact over the quarter of not offering him overtime at double time. The employer did not question the validity of the voluntary overtime reports which had been compiled by its local representatives. The grievors adduced in evidence the volunteer overtime reports prepared by the employer for the complete quarter when the grieved overtime situations occurred. Those voluminous reports indicate for each week of the quarter the number of overtime points accumulated by every correctional officer and the number of overtime hours that they worked each day.

16 On May 5, 2005, Mr. Bucholtz had 20 overtime points, but he was not called to work overtime on the day shift. Several officers were called to work that overtime shift, including one officer with 25 points and another with 26 points. Those two officers were paid at time and one-half, but Mr. Bucholtz would have been paid at double time. The quarter for the calculation of overtime points was from April 1 to June 30, 2005.

17 Mr. Bucholtz was called to work eight hours of overtime at time and one-half on May 27, 2005. He had 20 overtime points before his shift. Had Mr. Bucholtz been called for overtime on May 5, 2005, he would have had 28 overtime points before his May 27, 2005 overtime shift. The volunteer overtime report for that quarter shows that Mr. Bucholtz would still have been called for overtime on May 27, 2005 had he had 28 overtime points on that day.

18 Mr. Bucholtz was called to work eight hours of overtime at time and one-half on June 19, 2005. He had 28 overtime points before his shift. Had Mr. Bucholtz been called for overtime on May 5, 2005, he would have had 36 overtime points before his June 19, 2005 overtime shift. The volunteer overtime report for that quarter shows that Mr. Bucholtz would not have been called for overtime on June 19, 2005 had he had 36 overtime points on that day because some other officers had less than 36 overtime points.

19 Mr. Boucher is on a different overtime list than Mr. Bucholtz because his position is classified at a different level. On May 5, 2005, Mr. Boucher had 11 overtime points, but he was not called to work overtime on the day shift. Other officers were called to work that overtime shift, including one officer with 29 points and another with 32 points. Those two officers were paid at time and one-half, but Mr. Boucher would have been paid at double time. The quarter for the calculation of overtime points was from April 1 to June 30, 2005.

20 Mr. Boucher was called to work eight hours of overtime at time and one-half on May 10, 11 and 12, 2005. He had 11 overtime points before his shift on May 10, 19 overtime points before his shift on May 11 and 27 overtime points before his shift on May 12. Had Mr. Boucher been called for overtime on May 5, 2005, he would have had eight more overtime points before his May 10, 11 and 12 overtime shifts. The volunteer overtime report for that quarter shows that Mr. Boucher would still have been called for overtime on May 10, 11 and 12, 2005 had he had eight more overtime points on those days.

21 Mr. Boucher was also called to work eight hours of overtime at time and one-half on May 27 and on June 17, 2005. He had 35 overtime points before his shift on May 27 and 43 overtime points before his shift on June 17. Had Mr. Boucher been called for overtime on May 5, 2005, he would have had 43 overtime points before his May 27 overtime shift and 51 overtime points before his June 17 overtime shift. The volunteer overtime report for that quarter shows that Mr. Boucher would still have been called for overtime on May 27, 2005 and on June 17, 2005 had he had eight more overtime points on those days.

22 On May 27, 2007, Mr. Hunt had 12.5 overtime points, but he was not called to work 4 hours of overtime on the evening shift. Other officers were called to work those overtime hours, including an officer with 19.5 points, an officer with 23.25 points and an officer with 38.75 points. Those three officers were paid at time and one-half, but Mr. Hunt would have been paid at double time. The quarter for the calculation of overtime points was from April 1 to June 30, 2007.

23 Mr. Hunt was called to work seven and one-half hours of overtime at time and one-half on June 10, 2007. He had 12.5 overtime points before his shift. Had Mr. Hunt been called for overtime on May 27, 2007, he would have had 16.5 overtime points before his June 10, 2007 overtime shift. The volunteer overtime report for that quarter shows that Mr. Hunt would still have been called for overtime on June 10, 2007 had he had four more overtime points on that day.

24 On July 19, 2007, Mr. Hunt had 16.5 overtime points, but he was not called to work overtime on the day shift. Officer Bouchard was called to work four hours of overtime at double time on that shift. He had 22.5 overtime points. An officer with 49 hours of overtime was called for 4 hours of overtime on that shift. That officer was paid at time and one-half, but Mr. Hunt would have been paid at double time. The employer allowed the grievance in part at the final level of the grievance process and compensated Mr. Hunt for four hours of overtime at double time. The only officers called to work a full overtime shift on the day shift on July 19, 2007 were officers with less overtime points than Mr. Hunt. The quarter for the calculation of overtime points was from July 1 to September 30, 2007.

III. Summary of the arguments

A. For the grievors

25 The collective agreement obliges the employer to make every reasonable effort to allocate overtime on an equitable basis among readily available qualified employees. By calling Mr. Carew to work overtime on the evening shift on September 8, 2007, the employer bypassed Mr. Hitchcock, who was available and who had less overtime points than Mr. Carew. Mr. Hitchcock was about 10 to 15 minutes from the workplace and could have been called to replace the correctional officer who had just left on injury leave. The employer did not respect the local policy on the attribution of overtime among correctional officers, and it violated the collective agreement.

26  The CM testified that he called Mr. Carew because he might still have been in the institution. However, he would have called Officer Hawes in normal circumstances because that officer would have worked overtime at time and one-half. There was no evidence adduced that that officer would have agreed to work that overtime shift. The overtime volunteer report indicates initial availability, but the final availability is established only when an officer accepts the overtime offer made by the employer. Furthermore, Officer Hawes did not grieve that Mr. Carew was called for overtime. The adjudicator should limit the analysis to the situations of Mr. Hitchcock and Mr. Carew.

27 Even though they had the lowest number of overtime points among available officers, the other grievors were not offered overtime for the sole reason that they would have been paid at double time. That employer practice is a constant irritant in labour relations, and the bargaining agent never agreed to it. It violates clauses 21.10 a) of the 2001 and 2006 collective agreements. Those clauses do not include an economic element but rather state that the employer shall allocate overtime on an equitable basis. The grievors referred me to the Concise Oxford Dictionary, Tenth Edition for the definitions of “equity” and “basis.”

28 According to the practice in place at both the Millhaven and Joyceville institutions, officers would write down their availability for overtime each week. When offered overtime, officers would accept if they were still available. The volunteer overtime report shows that availability varied greatly between officers and from one week to another. The situation changed every day. Equitability in offering overtime should then be reconsidered at every overtime opportunity since availability varies greatly.

29 When the employer bypasses an available officer for overtime because that officer would have to be paid at double time, it changes the number of overtime hours worked by that officer and by the officer who was paid at time and one-half. It becomes almost impossible to recreate the situation at the end of a quarter and then to measure equitability. In that context, a grievor can almost never prove inequity.

30 The grievors referred me to Federal White Cement Ltd. v. United Cement Workers, Local 368 (1981), 29 L.A.C. (2d) 342; Hunt and Shaw v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 65; Mungham v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 106; Sumanik v. Treasury Board (Ministry of Transport), PSSRB File No. 166-02-395 (19710927); Sturt-Smith v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-15137 (19860731); Gibbons and Gillis v. Treasury Board (Revenue Canada – Customs & Excise), PSSRB File Nos. 166-02-17838 and 17844 (19890808); and Cambridge (City) v. Amalgamated Transit Union, Local 1608 (1997), 65 L.A.C. (4th) 13.

B. For the employer

31 The burden of evidence is on the grievors to prove that the employer did not allocate overtime on an equitable basis. Based on the evidence submitted, the grievors did not meet that burden.

32 On September 8, 2007, the employer was faced with exceptional circumstances. At the end of the day shift, the CM was informed that an officer had just been injured and that that officer could not work the evening shift. Mr. Hitchcock had left the institution but the CM believed that Mr. Carew was still on site. The CM called him to ask him to work the evening shift. There was no evidence adduced that, over time, in this case at the end of the quarter, this created an inequity in the distribution of overtime. Furthermore, had the employer used the normal procedure for offering overtime, Officer Hawes would have been called because Officer Hawes would have worked at time and one-half.

33 The other grievors alleged that the employer violated the 2001 or 2006 collective agreements by offering overtime to employees paid at time and one-half over employees paid at double time. The collective agreement does not oblige the employer to distribute overtime equally but rather equitably. The grievors adduced no evidence to support the allegation that prioritizing employees paid at time and one-half created inequity in the offering of overtime among readily available qualified employees.

34 The jurisprudence has established that equitability should not be measured with a snapshot approach but rather on a longer term basis. For these cases, according to the local practices or policies on the distribution of overtime, it should be measured quarterly. At the end of the quarter, the number of hours worked by an employee should be compared to the average number of hours worked by all employees. If an employee falls around the average, it means that overtime has been distributed equitably. If not, there might be reasons to explain the difference, such as the availability of employees.

35 The employer has always followed the practice of allocating overtime by first calling employees who would be paid at time and one-half and then by calling employees who would be paid at double time. Nothing in the collective agreement prevents the employer from using that practice. The grievors presented no evidence to prove that the manner in which the employer applied its overtime procedures created a discrepancy in overtime allocation. When hours of overtime are compared for available employees on a long-term basis, it shows that the grievors were treated on an equitable basis.  

36 The employer referred me to the following case law: Sumanik; Mungham; Hunt and Shaw; Côté v. Treasury Board (Post Office Department), PSSRB File No. 166-02-13060 (19830613); Armand v. Treasury Board (Solicitor General Canada,– Correctional Service), PSSRB File No. 166-02-19560 (19900629); Roireau and Gamache v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 85; Evans v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-02-17195 (19881007); and Lay v. Treasury Board (Transport Canada), PSSRB File No. 166-02-14889 (19861124).

IV. Reasons

37 The grievors worked at Joyceville and Millhaven institutions. The evidence shows that in both institutions, a common understanding existed between the employer and the union local about the meaning of an equitable basis for allocating overtime with one exception as stated in paragraph 7 of this decision. There were detailed procedures in place to calculate the number of hours of overtime worked by employees on a weekly basis. Furthermore, the weekly overtime list was updated daily. The employer’s practice was to respect those lists with the exception that employees paid at time and one-half would be prioritized over employees paid at double time.

38 Faced with a comparable procedure to allocate overtime, the adjudicator in Mungham wrote the following:

…

[31] This suggests that the overtime policy represents the common understanding of how overtime is to be allocated equitably, as required under the collective agreement. Although the document does not form part of the agreement, it is relevant to its interpretation and application (see Canadian Labour Arbitration (supra), paragraph 4:1220). The procedures manual (Annex “D” of the Agreed Statement of Facts) states that, should the use of overtime become necessary, “… the Duty CS shall ensure that all overtime is hired in a cost effective manner and further that all overtime hours are distributed evenly amongst staff… ” The employer has limited its discretion to assign overtime hours by this policy. There was testimony from Mr. Mungham that the bargaining agent accepted this policy as the method of equitable allocation of overtime opportunities. There was evidence that this policy is used on a regular basis, notwithstanding that there may be other grievances outstanding. In this way, the overtime policy represents the common understanding of what equitable allocation of overtime means. I therefore find that the overtime policy is binding on the employer. There was no dispute that, according to the policy, Mr. Mungham should have been given the overtime assignment on December 30, 2003. I therefore find that there was a breach of the collective agreement.

…

39 By putting overtime allocation procedures in place, and by using them for a long period, the employer has limited its discretion to assign overtime hours according to those procedures, as long as the procedures do not contravene the collective agreement. Overtime is first offered to the available employee with the lowest number of overtime points or hours in the quarter.

A. Mr. Hitchcock’s grievance

40 The evidence shows that, on September 8, 2007, the employer asked Mr. Carew to work overtime at double time even though Mr. Hitchcock had less overtime points. According to the CM, the overtime point system was not respected because he thought that Mr. Carew was still in the institution when he called him on his cellular phone. In fact, Mr. Carew had already left the institution and was in his car. Had the CM called Mr. Hitchcock to work that overtime shift, he would have reported to work approximately 10 minutes later than Mr. Carew. In the meantime, the post was occupied by another correctional officer.

41 Even though the CM learned at the last minute that he needed an extra officer to work overtime on the September 8, 2007 evening shift, I find that he could have respected the local overtime policy by offering the overtime to Mr. Hitchcock, who had less overtime points than Mr. Carew. By simply calling Mr. Carew, the CM did not make every reasonable effort to equitably allocate overtime. The employer did not adduce any evidence that waiting an extra 10 minutes for Mr. Hitchcock to arrive would have created an operational problem in maintaining service. Indeed, the evidence before me indicates that the injured officer’s post was staffed temporarily and no evidence at all was adduced to indicate that this temporary arrangement was in any way problematic.

42 In the alternative, the employer argued that, had it respected its normal procedure, it would not have called either Mr. Carew or Mr. Hitchcock but another officer, who would have been paid at time and one-half. The employer did not adduce any evidence at the hearing that that other officer would have agreed to work overtime on the evening of September 8, 2007. In addition, that officer did not grieve the employer’s decision to allocate overtime to Mr. Carew. Once a grievance is filed, the conflicting rights that the adjudicator must consider are those submitted to him or her and not a different conflicting situation. In other words, the issue in front of me is to decide if the employer violated the 2006 collective agreement by offering overtime to Mr. Carew rather than to Mr. Hitchcock. The question of offering overtime to Officer Hawes rather than to Mr. Carew or Mr. Hitchcock is hypothetical and was not grieved. On that point, I agree with the conclusion of the adjudicator in Federal White Cement Ltd. at paragraphs 24 and 25, which read as follows:

24 In summary, we are of the view that prior to the filing of a grievance, the company is entitled to correct any misallocation by payment to the person with the lowest number of accumulated hours in the proper class. However, once a grievance is filed, the company may not adopt that course but must pay the grievor. If, of course, more than one grievance is filed, the company may pay the person filing the grievance who has the lowest number of accumulated hours.

25 Accordingly, we award that the specific grievance before us be allowed and payment made to the grievor as agreed to by the parties, and we also award that the union is entitled to a declaration that where only one person files a grievance because of improper allocation of overtime outside the class, that person is entitled to payment and that payment may not be denied on the basis that the company wishes to pay the person with the lowest number of accumulated hours in the class at the time the allocation was made.

43 According to the local overtime procedure, the CM should have offered overtime to Mr. Hitchcock before offering it to Mr. Carew because Mr. Hitchcock had less overtime points than Mr. Carew. The fact that there was another officer who could have worked overtime at time and one-half and should have been called is irrelevant. Consequently, I find that the employer violated the 2006 collective agreement by not making every reasonable effort to allocate overtime on an equitable basis among readily available qualified employees.

B. The other grievances

44 In the other grievances, the employer did not offer the  overtime to the grievors who would have been paid double time, but rather to other officers with more overtime points or hours in the quarter because those officers were called at time and one-half. Contrary to the grievors, those officers were not on their second or subsequent day of rest.

45 Evidence was adduced that the employer’s long-standing procedure in the allocation of overtime hours was to prioritize employees on their first day of rest. In both Evans and Hunt and Shaw, the adjudicator concluded that, had he been convinced that prioritizing employees on their first day of rest created an inequitable allocation of overtime, he would have allowed the grievance. In Sturt-Smith, the adjudicator concluded that the grievor should have been offered overtime, even though he would have been paid at double time. In Sumanik, the adjudicator stated that cost should not be a factor in defining the equitable allocation of overtime.

46 I agree with the substance of those decisions. Even if it is legitimate for the employer to put in place practices to reduce costs, those should not result in the inequitable distribution of overtime. Otherwise, those practices violate the collective agreement. In the cases before me, using rates of pay when allocating overtime could violate the collective agreement if the result is the inequitable distribution of overtime among readily available qualified employees.

47 The parties admitted that the grievors were readily available qualified employees. The only remaining question is to decide if the employer’s practice of prioritizing the allocation of overtime to employees paid at time and one-half over employees paid at double time creates, in these specific cases, an inequitable allocation of overtime. The grievors have the burden of establishing that such is the case.

48 In Mr. Hitchcock’s case, it was fairly simple for the grievor to prove inequitable distribution of overtime because the other officer called by the employer to work the overtime shift was paid at the same overtime rate as the grievor. In such a case, the grievor had to prove two things: first that he had fewer overtime hours than the officer who was called for the shift, and second, that the fact that the employer believed he had already left the institution did not allow it to claim that it had made every reasonable effort in the allocation of overtime. Inequitable distribution of overtime was then proved. Keeping in mind the decisions in Evans and the Hunt and Shaw, it is more complicated to prove inequitable distribution for the remaining grievors. In these grievances, the grievors have to adduce evidence that the employer’s decision to prioritize employees on their first day of rest when it offered overtime created an inequitable allocation of overtime.

49  Considering that the local overtime procedure must be used to establish how equitability should be interpreted, equitability should be measured every day when overtime is allocated at the same overtime pay premium because that is what the policy implies. However, to measure equitability between employees at different pay premiums, equitability should be measured at the end of a quarter because the local policy allows the employer to allocate overtime to employees at the lowest premium as long as it does not violate the collective agreement, namely that it does not, over the course of the quarter, produce inequity in overtime allocation.

50 In establishing whether or not a particular overtime allocation made on the basis of cost (ie. time and one-half v. double time) caused an inequitability in the distribution of overtime over the course of a quarter, one cannot simply compare the total points or hours accumulated by each officer at the end of each quarter.  Nor can one establish this by simply comparing the quarterly totals of the officer who claims to have been bypassed in comparison to the officer who was allocated the overtime.  Since the number of overtime hours worked will largely be determined or influenced by the number of shifts for which an employee indicates his or her availability, such a simplistic comparison does not necessarily lead to a proper result.  It may be that an officer’s low totals at the end of a particular quarter are accounted for by the fact that he or she indicated availability on only a few occasions rather than by the fact that they were bypassed on one occasion because the employer would have had to have paid them double time. 

51 It could also be argued that the proper way to measure equitability would be to compile a ratio of the number of hours of overtime worked in a quarter divided by the number of hours of availability. After being calculated, that ratio could be compared to the average ratio for all employees. However, this method also does not stand up to close analysis because it is largely biased by the fact that an employees’ availability varies greatly over time and does not necessarily coincide with overtime opportunities. In other words, some employees could, for different reasons, be more available in periods when the amount of overtime offered is low. The opposite could also happen.

52 In the context of these grievances, equitability should be examined for every overtime opportunity but should be assessed at the end of the quarter. The grievors adduced in evidence the volunteer overtime reports applicable to the grievances of Mr. Bucholtz, Mr. Boucher and Mr. Hunt. In examining those reports, it is possible to verify whether a grievor lost any overtime hours in a quarter because of the missed overtime situation that was grieved.

53 The evidence shows that at the end of the April-June 2005 quarter, Mr. Bucholtz did not lose any overtime by not being offered overtime on May 5, 2005. On May 27 and June 19, 2005, Mr. Bucholtz was called for overtime shifts. Had he worked overtime on May 5, 2005, he would not have been offered overtime on June 19, 2005 because there were other employees that would have had less overtime points than him. At the end of the quarter, the employer’s decision not to call him at double time on May 5, 2005 had no measurable impact on the number of overtime hours that Mr. Bucholtz worked in the quarter. He was treated equitably.

54 The evidence shows that, at the end of the April-June 2005 quarter, Mr. Boucher lost eight hours of overtime by not being offered overtime on May 5, 2005. On May 10, 11, 12 and 27, and on June 17, 2005, Mr. Boucher was called for overtime shifts. Had he worked overtime on May 5, 2005, he would still have been offered overtime on those dates because there were no other available employees who would have had less overtime points than him. At the end of the quarter, the employer’s decision not to call him at double time on May 5, 2005 had a measurable impact on the number of overtime hours that Mr. Boucher worked in the quarter which left him with fewer hours than he should have had. He was not treated equitably.

55 In file 566-02-1624, Mr. Hunt alleges that he was bypassed for four hours of overtime. The evidence shows that at the end of the April-June 2007 quarter, Mr. Hunt lost four hours of overtime by not being offered overtime on May 27, 2007. On June 10, 2007, Mr. Hunt was called for an overtime shift. Had he worked four hours of overtime on May 27, 2007, he would still have been offered overtime on June 10, 2007 because there were no other available employees who had less overtime points than him. At the end of the quarter, the employer’s decision not to call him at double time on May 27, 2007 had a measurable impact on the number of overtime hours that Mr. Hunt worked in the quarter. He was not treated equitably.

56 In file 566-02-1625, Mr. Hunt alleges that he was bypassed for 8.5 hours of overtime on the day shift of July 19, 2007. The employer already allowed his grievance in part and paid him four hours of overtime at double time. Even though no details were provided to me on the reasons for partly allowing the grievance, I may suppose, in using the overtime reports adduced in evidence that it had to do with another officer being called to work four hours of overtime at double time on that shift. That officer had 22.5 overtime points, and Mr. Hunt had 16.5 points. An officer with 49 hours of overtime was also called for 4 hours of overtime on that shift. That officer was paid at time and one-half. The only officers who were called to work a full overtime shift on the day shift on July 19, 2007 were officers with less overtime points than Mr. Hunt. I do not need to examine what happened later in the quarter. By paying four hours of overtime to Mr. Hunt for his lost overtime opportunity, the employer treated him equitably.    

57 To decide those four grievances, I have reconstructed the overtime allocation situation for each grievor in a quarter. That method has its limits but is, in my opinion, a relatively simple method to determine if, in cases like these, overtime has been allocated equitably. I suggest that the parties depart from their actual positions which are both different from mine and not in line with the case law, and that they try to arrive at a fairly simple method of measuring equitability. In my opinion, they would benefit from doing it together rather than from leaving it to a third party.

58 The parties did not make any representations on remedies even though they agreed on the specific number of overtime hours involved in each grievance. The more recent jurisprudence is clear that the proper remedy is for the employer to pay the grievors for the overtime that they would have worked. I agree with that jurisprudence.

59 For all of the above reasons, I make the following order:

V. Order

60  I order the employer to pay Mr. Hitchcock eight hours of salary at double time.

61 I order the employer to pay Mr. Boucher eight hours of salary at double time.

62  I order the employer to pay Mr. Hunt (PSLRB File No. 566-02-1624) four hours of salary at double time.

63  The grievance in PSLRB File No. 566-02-27 is dismissed.

64  The grievance in PSLRB File No. 566-02-1625 is dismissed.

October 25, 2010.

Renaud Paquet,
adjudicator