FPSLREB Decisions

[1]    A number of correctional officers working at the Atlantic Institution filed identical grievances in July of 2002, which were referred to adjudication. The parties agreed that since the claims were the same, and evidence and argument would be the same, a single hearing was appropriate. The Board heard evidence from Vernon Brideau, a correctional officer and President of his union local. The Treasury Board (Solicitor General Canada) ("the employer") did not call evidence or cross-examine Mr. Brideau. Legal argument was made on behalf of the employer, and on behalf of the correctional officers and their bargaining agent, the Union of Canadian Correctional Officers.

[2]    The grievances claim that the employer requires correctional officers to be at work in advance of the start time of their shift, but is not prepared to pay them for this time.

Evidence

[3]    The Atlantic Institution is a modern maximum security penitentiary, employing 155 correctional officers and housing 200 inmates. The correctional officers work either a 12-hour shift or an 8-hour shift, depending on their work assignment. The employer has directed through a Post Order that officers ".prior to the commencement of each shift, report to the Shift Briefing room for briefing and report to the Correctional Supervisor".

[4]    Mr. Brideau explained that most correctional officers arrive about 30 minutes before the start of the shift. Before the shift start time, officers must be let into the institution, after which the first stop is their mailbox. The officers then go to the Shift Briefing Room and report to the shift supervisor. Mr. Brideau said that the length of the briefing varies. When officers are reporting after a few days' absence, the briefing can last up to 15 or 20 minutes, so they can be brought up to date on events such as knife confiscations, booze finds, inmate admissions and anything else correctional officers need to know to perform their jobs safely. Mr. Brideau testified that in the summer, the briefings tend to be 15 to 20 minutes, because inmates are more agitated. Mr. Brideau said that briefings can also be very short, particularly if the correctional officers were on shift the day before. On average, he testified, the briefings last 15 to 20 minutes. After the briefing, each officer goes to his post assignment for a further short briefing with the officer who is being relieved. All of this is to be accomplished before the shift start time, Mr. Brideau testified.

[5]    He said that most correctional officers arrive 20 to 30 minutes before the start of the shift because they do not know how long the briefings will take, and they understand that they are to be ready to relieve their colleagues at shift start time. Mr. Brideau acknowledged that at the end of the shift, he may be relieved up to 10 minutes early, but he may also not be relieved until up to 10 minutes after the end of his scheduled shift.

[6]    Mr. Brideau acknowledged that the practice of arriving early for shift briefings has been the norm for some time. In the summer of 2002, however, some employees decided to grieve because they felt that the employer was regularly benefiting from at least 10 minutes of their time each day, and when some employees did not arrive early, the employer criticized them for being late. Mr. Brideau feels that the employer is taking the extra time for granted.

[7]    In response to my question, Mr. Brideau advised that correctional officers do not sign in at the briefing, nor do they sign out at the end of the shift, with the result that there is no record of precisely how early officers arrive or when they are relieved at the end of a scheduled shift.

Argument

For the grievors

[8]    The collective agreement between Treasury Board and the Union of Canadian Correctional Officers-Syndicat des agents correctionnels du Canada CSN, requires the employer to pay overtime for time worked in excess of an employee's regular 8-or 12-hour shift. However, Article 21.14 places a limitation on the right to claim overtime:

21.14 An employee is entitled to overtime compensation for each completed fifteen (15) minute period of overtime worked by him or her.

[9]    On behalf of the grievors and the union, it was argued that the case is quite simple; Mr. Brideau has testified that most officers arrive 30 minutes early to accommodate a briefing that, on average, takes 15 to 20 minutes. When that briefing time is added to the time it takes to enter the institution, and meet for a short time with the officer going off shift, and recognizing that at the end of the shift the officer may be relieved 10 minutes early or 10 minutes late, I should conclude that, on average correctional officers are working an extra 20 minutes a day and should be compensated accordingly.

For the employer

[10]    Counsel for the employer argued that Mr. Brideau's evidence did not establish that a 15-minute period of overtime was worked. Instead, he said that the employees were normally giving up an extra 10 minutes a day. Even if the officers were working 10 minutes at the start, and not leaving until 10 minutes past the usual end time, that did not meet the requirement in clause 21.14 to work a "completed 15 minute period of overtime", because the shorter periods could not be added together. Counsel urged that it was typical for professional employees to arrive 20 to 30 minutes before the start of a shift and stay up to 10 or 20 minutes after the end of a shift. In response to a question from me, counsel said that the period of time before officers arrived at the Briefing Room should not be counted as work time.

[11]    Counsel relied on a Board decision in Lirette v. Treasury Board (Transport Canada) , PSSRB File. No. 166-2-15325 and 15328 (1987) (QL). The Board found that the grievors were required to attend briefings that, by the terms of their employer's directive, would normally not exceed 10 minutes. The relevant collective agreement entitled payment of overtime after 15 minutes of work. The Board concluded that since the briefings, on average, did not take more than 10 minutes, the grievors claim did not meet the 15-minute minimum threshold for overtime payment. The Board also commented that the few minutes of employees' time that the briefing entailed were an integral part of their duties and a responsibility that professional employees would be expected to fulfill.

Reply by the bargaining agent

[12]    As the grievors' representative pointed out, that case turned on the fact that the employer's directive stipulated that the briefing would last no more than 10 minutes, and in fact, on average, it lasted only 10 minutes.

Analysis and decision

[13]    Both the parties and the Board are hampered by the lack of any records documenting the actual time spent by the grievors getting through the gate, participating in the briefing, then arriving at their post, nor do we have precise information about how often officers are able to leave early. I note that in the Final Level Grievance Response to Mr. Brideau and the other grievors, the inability to determine the length of the briefing was given as a reason for denying the grievance. The November 5, 2002 response of the Assistant Commissioner, Human Resource Management, reads in part:

Consequently, as no specified time period can be determined for these shift briefings nor is it possible to determine those officers who participated in said shift briefings or which officers left their posts prior to the end of their designated shift, it is therefore impossible to determine the validity of this grievance and, in consideration of your requested corrective actions, your grievance is denied.

[14]    While it is understandable that the employer could not determine how long briefings had lasted in the past, who had attended the briefings, or how regularly officers had been permitted to leave early, the employer could establish record-keeping for the future. It could also control whether or not correctional officers leave early. Although a more formal sign-in and sign-out practice would sacrifice the flexibility that has, no doubt, benefited both the employer and employees, strict time-keeping would permit the employer to avoid or control overtime costs, and end correctional officers' perception that the employer is taking advantage of them.

[15]    In this case, the grievors have the obligation to establish their claim. I found Mr. Brideau to be frank and straightforward. He said that sometimes the briefings were very short, and not all officers attended all the time. He testified that the officers were working at least an extra 10 minutes a day, even taking into account those times when officers are relieved early. He said that the briefings lasted an average of 15 to 20 minutes. One significant point that the grievors' representative emphasized is that because the officers do not know how long the briefing will last until it is over, they must arrive a half an hour early to ensure enough time for a 15- to 20- minute briefing, and the period necessary to get to their post and speak with their departing colleague before shift start time.

[16]    The employer has the ability to control the briefing time and thus avoid creating the expectation that employees need to arrive up to 30 minutes early. The employer could, as the employer did in Lirette v. Treasury Board (Transport Canada) (above), direct a briefing period of less than 15 minutes. I appreciate that such a directive may not allow the employer to communicate all of the necessary information. On the other hand, if the employer requires correctional officers to attend a longer briefing, the employees are entitled to be paid for their time.

[17]    It may be typical, as the employer argues, for professional employees to arrive 20 to 30 minutes before the start of a shift, and stay up to 10 or 20 minutes before the end of a shift. However, the professional correctional officers are unionized and most of their terms and conditions of employment are governed by a collective agreement. Those terms must be respected and cannot be ignored on the basis that the employees are professionals. At the Atlantic Institution the employer has essentially turned the practice of arriving early into a specific work duty. In order to comply with the Post Order, employees must arrive 20 to 30 minutes early in order to have time to pass through the gate, arrive at the Shift Briefing room and be ready for a briefing that may last as little as 5 minutes or as much as 20, and then be at their post for shift change. It is simply not physically possible for employees to accomplish all of that in a 10-minute period, as urged by the employer. Although Mr. Brideau said that sometimes he is able to leave early, that is not always the case.

[18]    The grievors' claim relates to the period from the time they arrive at the Shift Briefing room, until the time they are ready to relieve their colleagues at their posts, having received a short briefing there too. I am satisfied on the evidence that the grievors, on average, have been working 15 minutes extra at the start of the shift and, therefore, they are entitled to be paid overtime for that period.

[19]    The collective agreement, at Article 20.10, essentially limits claims to a period of 25 days before the grievance is filed.

[20]    As the parties requested, I remain seized for 90-days in the event they are unable to agree on the quantum of damages.

Mary Ellen Cummings,
Board Member

Dated at Toronto, September 22, 2004.