FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Kevin Singleton and Chris Duplessis (“the grievors”) are employed as correctional officers at the Atlantic Institution of the Correctional Service of Canada (“the employer”), in Renous, New Brunswick. Mr. Singleton is classified CX-01, and Mr. Duplessis is classified CX-02. In February 2008, the grievors filed identical grievances that alleged that they were not properly compensated for work performed continuously from January 22 to 24, 2008, when they were called to work at Dorchester Penitentiary, in Dorchester, NB, as part of the Institutional Emergency Response Team (IERT).

2 Throughout the grievance process, the employer took the position that the grievors had been compensated correctly. However, at the final level of the grievance process, the employer acknowledged that the grievors were entitled to additional compensation for a small portion of the hours claimed in the grievances. Therefore the grievances were partially allowed. The grievors referred the grievances to adjudication on June 19, 2008.

3 At issue is the correct interpretation of clause 21.13 of the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agent correctionnels du Canada – CSN (“the union”), expiry date May 31, 2010 (“the collective agreement”), in particular whether the obligation to pay double time set out in that clause is to be calculated in addition to the pay that the grievors would normally receive for their regular hours of work or whether it includes the grievors’ regular pay.

II. Summary of the evidence

4 The grievors testified on their own behalf. The union also called Craig Purchase, a correctional officer at Dorchester Institution, to testify. The union entered five documents, including the collective agreement, into evidence. The employer called no witnesses and entered no documents into evidence. The parties agreed that the evidence called would be applicable to both grievances.

5 The grievors are volunteer members of the IERT. Mr. Duplessis explained that the IERT is made up of volunteers from the different Atlantic correctional institutions and that the members of the team can be called upon to deal with emergencies at different institutions, although it happens infrequently. He considered that it was more likely that members of the IERT from Dorchester Institution would be called into the Atlantic Institution than the reverse.

6 Mr. Duplessis explained that the IERT usually deals with such emergencies as inmates refusing to leave their cells, medical emergencies, riots, hostage-taking situations or exceptional searches. At the time in question in these grievances, the team was called upon to conduct an exceptional search at Dorchester Institution because it was thought that a weapon was in the institution, and the warden wanted the institution searched quickly.

7 The correctional manager at the Atlantic Institution called Mr. Duplessis and asked if he could go to Dorchester to work with the IERT on Sunday, January 22, 2008, which was his second day of rest. He was scheduled to work January 23 and 24, 2008 at the Atlantic Institution as part of his normal work schedule. He normally worked 12.75-hour shifts.

8 Mr. Singleton testified that he also was on his second day of rest when he received the call to work with the IERT at Dorchester. He was also scheduled to work on January 23 and 24, 2008 as part of his normal schedule at the Atlantic Institution. He also normally works 12.75-hour shifts.

9 Once the grievors arrived at Dorchester Institution, they took their direction from the team leader on site. They worked at Dorchester continuously from 14:00 on January 22 to 11:00 on January 24, 2008. They were scheduled to work for four hours and had four hours of “stand-down” time, as they described it, during which they could remove their equipment, eat, and rest or relax. Nevertheless, even while on stand-down time, they were considered to be working because they were on call, and could not leave the institution.

10 The grievors entered into evidence their overtime reports (Exhibits G-2, G-3 and G-5). Exhibits G-2 and G-5 were the original claims made by the grievors and initialled by the supervisor at Dorchester Institution. The grievors were told that they could leave the forms with the correctional manager at Dorchester, who would process them, or that they could take the forms back to the Atlantic Institution and have them processed there. The grievors chose to take the forms back to the Atlantic Institution because they were told that they would be paid faster if the claims went through their own institution.

11 The grievors claimed pay at double time on the forms that they submitted for the entire period that they were at Dorchester, in addition to time for meal breaks. They testified that, since their meals were provided to them by the institution, they did not claim meal allowances. Both grievors received responses to their overtime claims from the correctional manager at the Atlantic Institution with the amounts of the claims changed. Instead of claiming pay at double time for the entire period that they were at Dorchester, the correctional manager changed it to straight time for the hours that the grievors had been scheduled to work at the Atlantic Institution, as part of their normal schedule. By way of example, Mr. Duplessis explained that, since he had been scheduled to work on January 23, 2008 from 08:45 to 19:30, his overtime claim for that period was changed to pay at straight time instead of at double time.

12 Both grievors testified that they received their regular pay from the Atlantic Institution for the period in question. The shifts that they missed while working with the IERT at Dorchester were not deducted from their pay. They received a separate cheque for the overtime worked at Dorchester while on the IERT. Neither grievor was certain exactly how much overtime they were paid.

13 Mr. Duplessis testified that he learned that officers from other institutions working the same hours with him on the IERT were paid at the double–time rate. Mr. Singleton testified that, in the past when he had worked on the IERT, if he was off duty when called in, he would go on the double–time rate directly and stay on it until the incident finished.

14 Mr. Purchase works as a correctional officer, classified CX-02, at Dorchester Institution. He testified that he also works as part of the IERT and that he worked with the grievors at the time in question. He explained that about 12 to 15 members of the IERT were from Dorchester. He said that, for officers already on shift, double–time started only once their regular shift ended. As soon as the double–time rate was reached, officers were paid at that rate until the incident was finished. He testified that, depending on what rest day officers were on, they would be paid at double time after the first shift. He said that he had been sent to both the Atlantic Institution and Springhill Institution with the IERT and that it was always the same – the rate of pay was double time after the first shift.

III. Summary of the arguments

A. For the union

15 The union argued that these grievances should be allowed on the basis of the clear text of the collective agreement, precedent and past practice. Based on clause 21.13, the grievors were entitled to be paid at double time for the entire period that they claimed, in addition to their regular pay for their scheduled hours of work.

16 It is clear from Exhibits G-2 and G-3 that both grievors received pay at double time for the hours of overtime worked on January 22, 2008, which were hours worked on their second day of rest, consistent with clause 21.13(a) of the collective agreement. There is no issue with that portion of the grievors’ overtime claims. Furthermore, there was no issue with the grievors’ claims for pay at double time for the hours worked between 19:30 and 24:00 on January 23, 2008 and between 00:00 and 06:45 on January 24, 2008, because the claims were clearly covered by clause 21.13(d). However, the employer changed the grievors’ claims for overtime for the 12.75–hour shifts that they had been scheduled to work at the Atlantic Institution on January 23 and 24, 2008 from double time to straight time, on the grounds that the grievors were already paid straight time for those hours in their regular pay. The union argued that the clear language of clause 21.13 supported its position that the grievors were entitled to pay at double time for the entire period claimed, in addition to their regular pay.

17 The union stated that, although there is no case law directly on point, this issue is analogous to cases about the pyramiding of benefits. Citing Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 8:2140, on pyramiding, the union argued that there is no longer a presumption against pyramiding benefits and that, if the payments have different purposes, it is not improper for employees to receive the benefit of both. Quoting Brown and Beatty, the union noted that:

…

… the payment of a premium for work performed on a Sunday or a holiday under one provision in the agreement, and the inclusion of those hours in the computation of the hours worked by the employee for the purposes of determining entitlement to the weekly overtime premium under another clause, did not involve the pyramiding of benefits in the sense of paying twice for the same hours of work.

…

18 The union argued that that text applied directly to the facts of these grievances as the grievors had regular work for which they were entitled to be paid, they were assigned to work elsewhere and they were entitled to be paid under the overtime provision for that work, in addition to their regular pay.

19 The union also argued that, in similar circumstances in which the IERT was called to work, a consistent practice was used of paying employees at double time for the entire period of the IERT assignment, once employees had reached the double–time rate. The notion of reducing the pay rate to straight time for regularly scheduled hours, as was done in this case, is new. The parties knew that the practice was always to pay overtime in these circumstances at the double–time rate. The proper approach would have been for the employer to bring the issue to the bargaining table and not to unilaterally impose it on employees.

20 The union argued that, for all those reasons, these grievances should be allowed.

B. For the employer

21 The employer acknowledged that there was no question that the grievors did the work for which they claimed overtime. Nor is there any question that it was important and dangerous work. Nevertheless, the employer was not obligated under the collective agreement to pay triple time for it.

22 The facts in these grievances are clear. Both grievors were called in to work on their second day of rest and therefore were entitled to be paid at double time. For the hours worked at Dorchester Institution with the IERT, the grievors were entitled to pay at double time, and they were paid at double time. However, the employer was entitled to take into account the regular pay that the grievors confirmed they received for the shifts that they were scheduled to work but did not work at the Atlantic Institution. The grievors did not work their regularly scheduled shifts on January 23 and 24, 2008; other employees worked those shifts in the grievors’ places, while the grievors worked at Dorchester Institution.

23 The employer argued that past practice does not stand alone. An adjudicator can only consider past practice to interpret a collective agreement provision when the language of the article in question is ambiguous. In the face of clear language, past practice is irrelevant, since the intention of the parties can be gleaned from the express language of the collective agreement. The employer noted that the fact that there might be differences of opinion as to the meaning or construction of a provision of the collective agreement does not mean that the provision is ambiguous. The employer cited Snyder, Collective Agreement Arbitration in Canada, 4th ed.; Brown and Beatty; United Steelworkers v. Uddeholm Steels Ltd. (1971),22 L.A.C. 419; Weston Bakeries Ltd. v. Retail, Wholesale Bakery and Confectionery Workers, Local 461 (1974), 6 L.A.C. (2d) 190; DHL Express (Canada) Ltd. v. C.A.W.-Canada, Locals 4215, 144 and 4278 (2004), 124 L.A.C. (4th) 271, and Sensient Flavors Canada Inc. (Halton Hills) v. United Steelworkers, Local 3950 (2011), 105 C.L.A.S. 56.

24 The employer contended that, if evidence of a past practice is admitted, that practice must have been consistently applied with the knowledge of both parties, as described in DHL Express(Canada) Ltd., at paragraphs 88 and 89.

25 The collective agreement in this case is not ambiguous. In fact, the clauses at issue are straightforward descriptions of the hours of work and of overtime entitlements. Furthermore, the union presented no evidence of a past practice. All that was presented was the evidence of one employee, who could speak only to his own experience. He was not a member of the bargaining team and had no particular knowledge that would allow him to speak beyond his personal experience.

26 The employer also noted that the grievors could not actually determine what they were paid and what they believe they lost. They testified that they received their regular paycheques and overtime. The employer stated that, with one small exception, the grievors were paid at double time for the entire period in question and that there was no violation of the collective agreement. The employer acknowledged that Mr. Duplessis is owed payment for 3.75 hours, which the employer will undertake to pay him.

27 With respect to the issue of pyramiding benefits, the employer noted the language of clause 24.03 of the collective agreement, which provides that benefits under the overtime, reporting pay, standby and designated paid holiday provisions are not to be pyramided.

28 The employer urged that these grievances be dismissed.

C. Union rebuttal

29 The union argued that clause 24.03 of the collective agreement does not apply to the facts of these grievances because it specifically mentions only four provisions that are affected by the prohibition against pyramiding. In fact, there is no general prohibition against pyramiding benefits. The clause actually supports the union’s case because it proves that, in some circumstances, pyramiding is allowed.

30 The union supported the employer’s statement that the plain language of the collective agreement governs. In this case, the language is very clear, and no one disputed its interpretation for years. The union introduced the evidence of past practice because it reflects what the parties understood and put into place.

31 The union argued that the employer’s reason for reducing the grievors’ pay to straight time for the period for which they had already received straight time on their regular pay was wrong. According to the union, the plain language of the agreement required the employer to pay the grievors at double time, even though they had already received pay at straight time for their regular hours.

32 The union asked that these grievances be allowed in full.

IV. Reasons

33 The grievors are correctional officers normally employed at the Atlantic Institution in Renous, N.B., who volunteer as members of the IERT in the employer’s Atlantic region. In January 2008, they were asked to work at Dorchester Institution as part of an IERT team that was to conduct an intensive search of that institution. From January 22 to 24, 2008, the grievors worked continuously at Dorchester, working four hours on and four hours off, which was considered to be time worked because they were on call and could not leave the institution. They claimed and were paid overtime for all that time.

34 The period of the assignment at Dorchester coincided with two regular 12.75–hour shifts that the grievors were normally scheduled to work on January 23 and 24, 2008 at the Atlantic Institution but did not work because they were in Dorchester. The two shifts that they did not work at the Atlantic Institution were not deducted from their regular paycheques. The grievors also each received a separate overtime cheque for their work on the IERT at Dorchester. The issue between the parties is the correct rate of overtime to which the grievors were entitled for the period covering their two regular shifts on January 23 and 24, 2008.

35 The parties agreed that clause 21.13 of the collective agreement applies to the facts of these grievances. That clause provides as follows:

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,

1. 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),
   or
2. after eight (8) hours of overtime in a calendar day, or
3. in excess of eight (8) consecutive hours of overtime in any contiguous period of overtime,
4. in the case of an emergency as determined by the Employer, when an employee is required to work more than twenty-four (24) consecutive hours, the employee shall be compensated at the rate of double (2) time for all hours continuously worked in excess of twenty-four (24) hours.

36 The employer did not dispute the grievors’ entitlement to double–time pay for the entire period of their assignment at Dorchester. There was no question that they were called in on their second day of rest and that they then worked continuously in excess of 24 hours, as set out in clause 21.13(d) of the collective agreement. However, the employer maintained that it paid the grievors at double time for all the hours in question. The grievors already received payment at the straight–time rate for the shifts that they were scheduled to work at the Atlantic Institution but did not work because of the Dorchester assignment. Therefore, the employer made only a second straight–time payment for those particular hours on the separate overtime cheque, on the theory that two payments at the straight–time rate is the equivalent of double–time pay.

37 I find that, although the grievors were not entirely certain what payments they received, they did receive two straight–time payments for the two shifts in question. The documents tendered by the union, particularly Exhibits G-3, G-4 and G-5, support that conclusion. Further, Mr. Duplessis testified that there was no deduction from his regular paycheque for the two shifts that he did not work at the Atlantic Institution. Although Mr. Singleton was not sure what he was paid, he stated that he would have noticed had his regular pay been deducted. He did not believe that it had been. In any case, the union did not question that, for the shifts on January 23 and 24, 2008 that they would normally have worked at the Atlantic Institution, the grievors received separate, straight–time payments through their regular pay. The question is, were they entitled to more?

38 The union argued that the grievors should have received double–time pay for all the hours worked at Dorchester in addition to their regular pay, effectively making the rate of pay for the two shifts in question triple time. The union supported that claim on the basis of the plain language of the collective agreement and past practice. The union also argued that, since the prohibition against pyramiding set out in clause 24.03 did not specifically list regular pay in the list of payments that cannot be pyramided, it must be permissible to receive overtime on top of straight–time pay for regularly scheduled hours of work.

39 The crux of the union’s argument appears to be that, on the plain language of clause 21.13(d) of the collective agreement, the grievors were entitled to receive double–time pay for all the hours that they worked with the IERT at Dorchester Institution, regardless of any other compensation for those hours that they might have been entitled to receive. The union’s position presupposes that clause 21.13 creates an entitlement to overtime compensation that exists independently from the employer’s obligation to pay employees for services rendered. The union buttressed its argument by noting that the weight of arbitral jurisprudence no longer opposes pyramiding benefits and that, in this instance, the collective agreement does not specifically prohibit pyramiding overtime on top of regular pay. The union argued that, had the parties intended to prohibit pyramiding regular pay on top of overtime pay, there would have been express language in the collective agreement as there is for other benefits that the parties agreed should not be pyramided.

40 I do not agree that clause 21.13 of the collective agreement creates an entitlement to compensation that is separate from the employer’s general obligation to pay for services rendered. In my view, clause 49.02 establishes the entitlement of employees to be paid for their services, and Appendix “A” sets out the base pay rates, or as commonly understood, the straight–time rates. Absent any other language in the collective agreement, employees are entitled to receive those pay rates for the services that they render. That article creates the obligation on the employer to pay employees.

41 Article 21 of the collective agreement establishes the hours of work of employees and their overtime entitlement. That article that determines the rates of pay, depending on the hours scheduled and worked. Employees receive straight–time pay for their regular hours of work. Work in excess of the regular or scheduled hours of work is “overtime,” as defined in clause 2.01(q). Clauses 21.12 and 21.13 set out the compensation rate when employees work overtime. Because of those clauses, there are, in fact, three rates of pay, depending upon the hours worked. The straight–time rate is defined in clause 2.01 (p) as “the employee’s hourly rate of pay,” pay at time and one-half is defined in clause 2.01(r) as “one and one-half (1 1/2) times the employee’s hourly rate of pay,” and double–time pay is defined in clause 2.01(s) as “two (2) times the employee’s hourly rate of pay.” Those rates are not stacked; employees are paid at either the straight–time rate, the time and one-half rate or the double–time rate.

42 In my view, the reason that there is no prohibition against pyramiding overtime pay and regular pay is that they are in essence the same thing – the rate of pay for services rendered that applies to the particular hours worked by an employee, as set out in article 21 (Hours of Work and Overtime) of the collective agreement. Pyramiding relates to the application of different benefits under the collective agreement, usually set out in different articles and designed for different purposes. That is not the situation in this case.

43 In the circumstances of these grievances, the grievors were entitled to receive double–time pay for all the hours that they worked at Dorchester Institution between January 22 and 24, 2008. Had the parties intended that the obligation to pay at double time was in addition to the receipt of regular pay, the collective agreement would have been as explicit as it is, for example, in clause 26.05 (Designated Paid Holidays), in which it is specified that the pay received for working on a designated paid holiday is “… in addition to the pay that the employee would have been granted had he or she not worked on the holiday.” The parties did not use such explicit language in clause 21.13, and I do not believe such an intention can be inferred from the language used.

44 Nor am I persuaded that the language used in the collective agreement is ambiguous. For that reason, I am not inclined to rely on evidence of past practice. Even were I so inclined, I do not find the evidence that was presented on the employer’s practice of paying double time in emergencies illuminating. Mr. Purchase did not testify as a shop steward or union representative who might have knowledge of a consistent practice. Nor did he testify as a former member of the bargaining team. His evidence related only to his own experience. Furthermore, he said simply that, when he worked as a member of the IERT in similar circumstances, he received pay at double time after the first shift. He was not asked whether he ever received pay at triple time, and he did not testify that he ever had received such a payment. Consequently, even had I found the language of the collective agreement so ambiguous as to require evidence of past practice, the evidence fell far short.

45 As I have explained, I find that the grievors were entitled to receive pay at double time for the shifts on January 23 and 24, 2008 that they had been previously scheduled to work at the Atlantic Institution. I also find that they received double–time pay for those two shifts, albeit in two separate payments. Accordingly, I find no violation of the collective agreement. However, I note for the record that the employer has undertaken to pay Mr. Duplessis 3.75 hours of overtime that it acknowledged was owed to him. Based on that concession, and to that extent, Mr. Duplessis’ grievance is partially allowed.

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

V. Order

47 Mr. Singleton’s grievance is dismissed.

48 Mr. Duplessis is to be paid 3.75 hours of overtime at the applicable rate.

September 19, 2012.

Kate Rogers,
adjudicator