FPSLREB Decisions

I. Individual grievance referred to adjudication

1 When he filed his grievance, Gregory Cooper (“the grievor”) was a correctional officer, classified at the CX-02 group and level, with the Correctional Service of Canada (“the employer”) at Fenbrook Institution (“the Institution”). The grievance, filed on July 23, 2007, was about a change made to his work schedule for the week of June 18, 2007, for which he was paid at his regular rate of pay. The grievor was required to work 16 consecutive hours, beginning at 15:00 on June 23 and ending at 07:00 on June 24, 2007. The corrective action sought was that he be paid the appropriate overtime rate for the last seven and a half hours that he worked on June 24.

II. Summary of the evidence

A. For the grievor

2 At the beginning of the hearing, the grievor’s representative adduced three exhibits. The first two were the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada – CSN (“the bargaining agent”) (expiry date: May 31, 2010; “the collective agreement”) and the grievance, which reads as follows:

I grieve that on or about June 11/07 I was directed that on June 24/07 I would be working 16+ consecutive hours of work.

To be reimbursed for monies that I should have been paid as overtime hours of work (8hrs).

To not be forced/expected to work any additional hours or use additional leave credits in order to accommodate weekly/yearly hours of work mismanaged by the employer as a result of this.

For management to follow the CX Collective agreement.

The third exhibit was an agreed statement of facts, which reads as follows:

…

1. Mr. Gregory Cooper (the grievor) is a full-time employee of the Correctional Service of Canada. He is a Correctional Officer II at Fenbrook Medium Security Institution.

2. The grievor is a shift worker. His work schedule is composed of eight and a half (8.5) and nine (9) hour shifts.

3. The grievor was initially scheduled to work evening shifts (1430 to 2300) during the week of June 18 2007.

4. The Employer changed the grievor’s June 24 2007 evening shift to a morning shift (2245 to 0715).

5. The Employer gave the grievor more than forty-eight (48) hours notice of the required change of shift.

6. As a result of the change, the grievor was required to work sixteen (16) contiguous hours beginning at 1500 on June 23 2007, and ending at 0700 on June 24 2007.

7. The grievor was paid at the regular rate of pay on June 23, and 24 2007.

3 The grievor’s representative did not call any witnesses.

B. For the employer

4 The employer’s counsel called one witness, Leonard Page, an experienced and long-standing scheduling and deployment manager, who was responsible for the schedules of all correctional officers at all levels of the Institution. The employer also adduced three exhibits.

5 At the time of the grievance in 2007, there were approximately 50 correctional officers classified at the CX-02 group and level and between 80 and 98 correctional officers classified at the CX-01 group and level at the Institution.

6 Mr. Page confirmed that the grievor was a shift worker and that, at the time of the grievance, he worked either seven days consecutively with three days off (“7-3”) or seven days consecutively with four days off (“7-4”).

7 Mr. Page testified that, due to operational requirements, he had no choice but to change the grievor’s schedule on June 23 and 24, 2007. However, he testified that the shift change that he made for the grievor on June 23 and 24, 2007 occurred very rarely. Mr. Page stated that a similar shift change had occurred only twice at the Institution in the last five years (2005 to 2010).

8 In cross-examination, Mr. Page indicated that he had no other options or alternatives than to schedule the grievor as he did. In addition, he stated that he made his decision on May 7, 2007 (Exhibit E-3).

9 The hearing was adjourned at the parties’ request on March 17, 2010 after Mr. Page, in cross-examination, testified that an agreement existed with the bargaining agent’s local vice-president, Stuart Mungham, which precluded the employer from scheduling overtime in advance. However, since the employer could not find the agreement for the hearing, they asked for an adjournment.

10 The document was subsequently produced. It was an email trail in which both Mr. Mungham and Bernie Blimkie, Acting Deputy Warden, limit the application of the agreement to normal conditions. Mr. Mangham wrote that “[t]his policy is for when we are in normal operation and emergency’s [sic] that need to be addressed earlier obviously cannot be covered by this.”

III. Summary of the arguments

A. For the grievor

11 The grievor’s representative asked that I consider the following two questions: 1) Was it appropriate for the employer to schedule two consecutive shifts for the grievor on June 23 and 24, 2007? 2) Did the grievor receive the appropriate rate of pay for the second shift, on June 24, 2007?

12 The grievor submitted that he was inappropriately scheduled for 16 consecutive hours of work and that he was not paid correctly for the last 7.5 hours.

13 The shift change resulted in the grievor working two consecutive shifts beginning at 15:00 on June 23 and ending at 07:00 on June 24, 2007. The grievor argues that the employer violated clauses 21.02(a)(ii) and (b)(i) of the collective agreement, which read as follows:

21.02 When hours of work are scheduled for employees on a rotating or irregular basis:

(a) they shall be scheduled so that employees:

…

(ii) on a daily basis, work eight decimal five (8.5) hours per day.

(b) every reasonable effort shall be made by the Employer:

(i) not to schedule the commencement of an employee's shift within eight (8) hours of the completion of the employee's previous shift…

14 Since the grievor is a shift worker, clause 21.02 of the collective agreement applies to this situation. The grievor’s representative said that the first question is: Did the employer make every reasonable effort not to schedule the grievor’s next shift within eight hours of his previous shift? According to the grievor’s representative, the uncontested evidence is that the employer scheduled the grievor to work two consecutive shifts. The question of whether the employer made every reasonable effort to give the grievor eight hours of rest between his shifts still remains. The evidence is that Mr. Page was unable to schedule another employee on regular hours of work to cover the shift starting at 23:00 on June 23, 2007 and ending at 07:00 the following day. It follows among other options, that the employer could have offered the shift as overtime to employee volunteers.

15 The grievor’s representative submitted that this situation should arguably have been addressed earlier than one and a half hours before the midnight shift in question. Therefore, it was just the type of situation that the authors of the email exchange sought to exclude from the agreement.

16 Alternatively, the employer could have sought to fill the shift from a list of volunteers just before it began. In any case, neither Mr. Mungham nor Mr. Blimkie had the authority to modify the terms of the collective agreement.

17 If the local agreement led to a violation of clause 21.02(b)(i) of the collective agreement, its provisions must prevail. Babb et al. v. Treasury Board (Solicitor General Canada - Correctional Service), 2000 PSSRB 54, at para 129, noted the following in a similar context:

[129] The final grievance alleges a violation of clause NU-8.19. This clause is clear and mandatory: “an employee shall not be scheduled to work in excess of fifty-two and one-half (52 1/2) hours without at least two (2) consecutive days of rest.” No evidence was submitted to show that operational requirements necessitated that employees be scheduled seven days consecutively. To the contrary, the employer agreed that any 8-hour shift schedule would be acceptable. Clause NU-8.19 does not permit a departure from the obligation not to schedule in excess of fifty-two and one-half hours without at least two consecutive days of rest. It would require specific language in the collective agreement to authorize a representative at the local level to waive the obligation of such mandatory provisions of the collective agreement.

[Emphasis added]

18 Finally, the grievor’s representative emphasized that Mr. Page testified that two consecutive shifts scheduled without a break occurs infrequently. His testimony is that it occurred at the Institution twice from 2005 to 2010.

19 In conclusion, as for the “every reasonable effort shall be made by the employer clause,” the bargaining agent representative argues that it would have been reasonable for the employer to consult with the local bargaining agent representatives if it sought an occasional exception to the existing local agreement. There is no evidence that the employer approached the bargaining agent to discuss the situation.

20 For all those reasons, the grievor submitted that the employer did not make every reasonable effort to allow eight hours between his shifts.

21 The second question raised by the bargaining agent was the following: What was the appropriate rate of pay for the grievor from 23:30 June 23, 2007 to 07:00 June 24, 2007 in the instant case?

22 The grievor’s representative analyzed the following clauses of the collective agreement:

…

2.01 (q) … "overtime" means (heures supplémentaires):

(i) in the case of a full-time employee, authorized work in excess of the employee's scheduled hours of work;

…

21.09 Where an employee's scheduled shift does not commence and end on the same day, such shift shall be deemed for all purposes to have been entirely worked:

(a) on the day it commenced where half (1/2) or more of the hours worked fall on that day,

…

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.

…

[Emphasis added]

23 Finally, the grievor’s representative argued that the grievor is entitled to compensation at time and one-half for each hour of overtime he worked. He received the regular rate of pay for all hours worked. Therefore, he is entitled to the difference for the last 7.5 hours he worked on the day in question.

24 The grievor’s representative concluded that the employer violated clause 21.02(b)(i) of the collective agreement when it scheduled the grievor for two consecutive shifts on June 23 and 24, 2007 and that the grievor should be compensated accordingly, as per the collective agreement.

B. For the employer

25 The employer submits that it did not violate the terms of the collective agreement because the parties agreed that the employer may make the type of shift change at issue here. The parties also agreed in the collective agreement that an employee be given 48 hours notice before any shift changes, failing which the employer incurs a penalty in the form of compensation at the rate of time and one-half for the first full shift worked. In this case, the grievor was provided the 48 hours notice and therefore was not entitled to the enhanced compensation.

26 The employer’s counsel argued that the relevant provisions of the collective agreement are clauses 21.02 and 21.03(d). Mr. Page explained that substitute officers (“sub officers”) are used by the employer to fill vacancies resulting from staff absences. At the time in question, the grievor was working as a sub officer. Furthermore, Mr. Page stated that the grievor preferred to work the evening shift and that he did not like to work the morning shift. He also confirmed that shift substitutions are frequent at the Institution but that they rarely result in a 16-hour shift. Mr. Page stated that, in all of 2005 to 2010, he was aware of only two incidents when a 16-hour shift resulted from a shift substitution. Finally, Mr. Page testified that there existed “an agreement with the local union that correctional managers will not hire on overtime until after shift count.” He testified that he thought that the local agreement might have been in writing.

27 This local agreement was referred to in an email exchange started by Steve Callaghan emailing Carol Litster on December 7, 2005, which reads as follows:

Hello Carol, I have a question and I hope you might be able to answer. C/S Ferguson and I were speaking regarding the Overtime hiring process. Was there anything set up in writing, as too, the time frame for CX to have their name down on the sign up sheet, before shift. The unwritten rule is about 1.5 hrs before your shift. I was wondering if anything was set up with Mr.Provan. Anything you have will be helpful, thanks. I will be asking the Union for there background knowledge in this situation as well.

…

Followed by a reply by Mr. Blimkie to Mr. Callaghan, on December 8, 2005, which reads as follows:

I don’t believe there was ever any hard and fast rule made. Certainly nothing stopping a CX from putting their name down even at the last minute but some else would probably already have been hired if available.

I am not aware of the 1.5 hr unwritten rule you refer to.

If you are referring to 1.5 hours before the shift the OT is required; I would think the O/T would be filled before that time specially in the case of a midnight shift to give staff at home as much advance notice as possible and perhaps the chance to get some sleep if needed.

I believe CS wouldn’t normally start hiring for the next shift at least until previous shift arrived to give them an opportunity to put their name down.

Len, please comment if you have any additional info

Ryan/Stuart, Is something we want to discuss and nail down to definite timeframe.

Mr. Mungham answered the following to Mr. Blimkie, Mr. Callaghan and Ryan Dewey on December 15, 2005:

If you find this acceptable we can agree to the Duty C/S hiring O/T after the first count of each shift is clear. This should give all involved time to sign up and run the next shift. People that sign up after the count is clear should still fall into the hiring order under the current guidelines but would not bump those already hired. This policy is for when we are in normal operation and emergency’s that need to be addressed earlier obviously cannot be covered by this.

[Emphasis added]

The email trail finished by Mr. Blimkie replying  the following to Mr. Mungham, Mr. Callaghan, Mr. Dewey and Scott Tempest:

From what I have been able to determine this seems close to what usually happens in the absence in any policy in this regard.

So let’s agree we will use this a timeframe as a policy. Under normal condiditions we will not start the hiring of O/T until after the first count after the commencemen tof each shift

[Sic throughout]

28 In the opening remarks of the employer’s written submissions, its counsel reiterated the two questions raised by the bargaining agent: 1) Was it appropriate for the employer to schedule two shifts for the grievor consecutively? 2) What is the appropriate rate of pay for the second shift once an employee has worked two consecutive shifts?

29 The employer’s counsel submitted that, however, the real issue is whether the employer violated article 21 of the collective agreement when it exercised its right to change the grievor’s shift schedule on June 24, 2007. In other words, did the employer violate clause 21.02 by failing to make “every reasonable effort” not to schedule the commencement of the grievor’s last shift within eight hours of the completion of the previous shift?

30 The employer’s counsel argued that the grievor failed to establish a violation of the collective agreement and that, consequently, the grievance ought to be dismissed.

31 Clause 21.03(d) of the collective agreement requires the employer to give 48 hours notice of a shift change; otherwise the employee is entitled to the time and one-half rate of pay for the first full shift worked on the new schedule. The employer provided adequate prior notice and therefore has not violated clause 21.03(d).

32 Also, the employer argues that the collective agreement recognizes its management right to make regular shift schedules and to make changes to those schedules, provided that those changes comply with the provisions of the collective agreement. Indeed, clause 21.03 directly reflects this caveat by imposing a financial disincentive on the employer.

33 The employer’s counsel then continued by asking the question, “What step(s) did the employer take to avoid the shift change and were these reasonable?” The employer answered that the “overtime factor” is not an appropriate test for assessing the reasonableness of its actions and referred to Morhart v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 36, in which the adjudicator held that the reasonableness of an employer’s action with respect to scheduling must be assessed in the context of its operations.

34 The employer’s counsel submitted that the employer’s conduct was reasonable and that Mr. Page’s evidence supports that conclusion.

35 Counsel for the employer also argued that the grievor was notified of the shift change on May 7, 2007 and that he was advised that, if he had any concerns, he should communicate with the duty correctional supervisor. However, he did not identify or communicate any concerns. In addition, the employer argues that the grievor could have discussed the shift change with Mr. Page after receiving the notice of May 7, but that he never communicated any concerns to Mr. Page.

36 With respect to the suggestion that the employer could have used overtime, it was submitted by the employer that such a conclusion would be contrary to the provisions of the collective agreement. The collective agreement clearly provides for the type of shift changes that occurred as well as for overtime.

37 With respect to the email trail on the issue of the employer being precluded from scheduling overtime in advance (see Annex A), the employer in argument states that the local agreement on overtime is not relevant to the instant case.

38 Finally, on the issue of appropriate compensation, the employer notes clauses 21.02 and 21.03 of the collective agreement and argues that the grievor received the appropriate compensation because he was given more than 48 hours notice of the shift change.

39 The employer requests that I dismiss the grievance.

IV. Reasons

40 I allow the grievance for the following reasons.

41 The central issue in dispute in the instant case is whether the employer violated clause 21.02(b)(i) of the collective agreement, which reads as follows:

(b) every reasonable effort shall be made by the Employer:

(i) not to schedule the commencement of an employee's shift within eight (8) hours of the completion of the employee's previous shift…

The employer argues in its written submissions that the grievor failed to establish a violation of the collective agreement, and therefore, this grievance ought to be dismissed. Furthermore, in its written submissions, the employer relies on clause 21.03(d), which reads as follows and the fact that it provided 48 hours’ notice of a scheduled shift change to avoid violating the collective agreement:

21.03

…

(d) An employee whose regularly scheduled shift is changed, pursuant to article 21.02(b)(ii), without forty-eight (48) hours prior notice shall be compensated at the rate of time and one-half (1 1/2) for the first (1^st) full shift worked on the new schedule. Subsequent shifts worked on the new schedule shall be paid for at the straight-time.

42 A close examination of clause 21.03(d) of the collective agreement clearly reveals that this provision applies only to clause 21.02(b)(ii), which reads as follows:

21.02 (b) every reasonable effort shall be made by the Employer:

…

(ii) to ensure an employee assigned to a regular shift cycle shall not be required to change his or her shift more than once during that shift cycle without his or her consent except as otherwise required by a penitentiary emergency. A change of shift followed by a return to the original shift is considered as one change;

Shift means the employees [sic] regularly schedule [sic] hours of work in accordance with article 21.03(a) not the post to which the employee is assigned.

43 Relying on clause 21.03(d) of the collective agreement does not exempt the employer from its responsibilities under clause 21.02(b)(i). On the contrary, the employer is responsible not only for sending an appropriate notice of a shift change to an employee but also for making “every reasonable effort” not to schedule the beginning of an employee’s shift within eight hours of the completion of the employees previous shift. This responsibility and obligation of the employer under clause 21.02(b)(i) began in this instant case on May 7, 2007, when the notice was sent up to June 23, 2007 (47 days). For the grievor, that meant that the employer had an obligation to make every reasonable effort over a 47-day period to avoid scheduling the grievor for two consecutive shifts without an 8-hour break between the two shifts.

44 I was not presented with any evidence that showed that the employer made every reasonable effort not to schedule consecutive shifts for the grievor from the notice of change letter dated May 7 to June 23 and 24, 2007.

45 What I did hear in evidence from the employer on that point was that it, through Mr. Page, did not receive any questions or concerns from the grievor after Mr. Page’s notice of May 7, 2007. I must underline that the contractual obligation in clause 21.02(b)(i) is squarely on the employer.

46 Maybe the grievor made no effort to speak to Mr. Page, but the uncontradicted evidence is that the grievor obeyed the new schedule. He worked on June 23 and 24 for a total of 16 consecutive hours and he then grieved. In other words, the grievor performed the work required of him and then followed up with his grievance (following the “obey now and grieve later” principle).

47 In this case, the employer’s responsibility under clause 21.02(b)(i) of the collective agreement was ongoing from May 7, 2007 to the start of the grievor’s consecutive shifts of June 23 and 24, 2007.

48 The employer argued that the local agreement is not relevant. Without drilling into the merits of the local agreement, the email exchange reveals that the employer and the bargaining agent local have a history of being able to meet and to reach local agreements about the provisions of the collective agreement.

49 During the hearing, I did not hear any evidence that the employer attempted to find a solution with the local executives of the bargaining agent. Had that happened, it might have been an example of a reasonable effort made by the employer to find a way to avoid scheduling a 16-hour shift.

50 Clause 21.02(b)(i) of the collective agreement is a mandatory obligation on the employer to make “every reasonable effort” not to schedule the commencement of an employee’s shift within eight hours of the completion of the employee’s previous shift.

51 The employer was obliged to make “every reasonable effort” under clause 21.02(b)(i) of the collective agreement. My examination of the French version of clause 21.02(b)(i), which reads as follows, is that every reasonable effort required of the employer was one level higher than the English version:

21.02 Lorsque les heures de travail des employé-e-s sont établies suivant un horaire irrégulier ou par roulement :

…

b) l'Employeur prendra toutes les mesures raisonnables possibles :

(i) pour ne pas fixer le début du quart de travail dans les huit (8) heures qui suivent la fin du quart de travail précédent de l'employé-e…

52 The precision of the French text of clause 21.02(b)(i) of the collective agreement positively qualifies the parties’ intent to seek every possible reasonable effort.

53 The bargaining agent representative raised two issues: 1) Is it appropriate for the employer to schedule two shifts consecutively? 2) What is the appropriate rate of pay for the second shift once an employee has worked two consecutive shifts?

54 In response to the bargaining agent representative’s two questions, the employer submits that the real issue is whether it violated article 21 of the collective agreement when it exercised its right to change the grievor’s shift schedule on June 24, 2007. In other words, did the employer violate clause 21.02 by failing to make “every reasonable effort” not to schedule the commencement of the grievor’s shift within eight hours of the completion of his previous shift?

55 The employer has the right to make shift changes and introduce and implement operational requirements. Those rights must always be exercised in compliance with the provisions of the collective agreement.

56 I find that the employer violated clause 21.02(b)(i) of the collective agreement. The employer could have made every reasonable effort to avoid scheduling two continous shifts, but it failed to do so.

57 The next issue is the appropriate rate of pay for the second consecutive shift. Clearly, the additional 7.5 hours fall within the definition of “overtime”. Accordingly, under clause 21.12 of the collective agreement, the grievor is entitled to the time and one-half compensation for 7.5 hours.

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

V. Order

59 The grievance is allowed. The employer violated clause 21.02(b)(i) of the collective agreement. The grievor is entitled to 7.5 hours of overtime pay at time and one-half.

March 28, 2011.

Roger Beaulieu,
adjudicator