FPSLREB Decisions

[1]    Mr. Gamache works at the Cowansville Penitentiary and worked a variable schedule from 1998 to 2002.

[2]    Around March 2, 2002, he received his work schedule and checked to see his previous schedule from the preceding two weeks, as he usually did. Mr. Gamache then noted that, through the same computer function, he could access all his schedules going back as far as 1998.

[3]    Upon checking his previous schedules, he observed that the total number of hours worked per year exceeded the number of hours provided for a year in the collective agreement.

[4]    On March 14, 2002, he filed a grievance to have the employer compensate him for the excess hours worked since April 1, 1998. The employer responded at the various levels of the grievance procedure that the grievance was time-barred for the period from 1998 to 2001.

[5]    The grievance was referred to adjudication in February 2003 and the hearing was held at Sherbrooke in November 2003.

The Facts

[6]    Mr. Gamache explained in his testimony that he does shift work. For the period from April 9, 2001, to March 2002, the shift cycles were allocated among 72 correctional officers. For the previous period, from April 1, 1998, to April 8, 2001, the shift cycles were allocated among 60 correctional officers.

[7]    Mr. Gamache filed, in a bundle, the schedules he worked during those years. Exhibit F-2 contains the work schedules for 1998-1999, Exhibit F-3 those for 1999-2000, Exhibit F-4 those for 2001-2002, Exhibit F-5 those for 2001-2002 and Exhibit F-6 those for 1997-1998.

[8]    During the grievance procedure, the employer purportedly refused to check and calculate the hours worked by Mr. Gamache during the 1998-2001 period, since it considered the grievance untimely for that period. However, the employer said it had observed that Mr. Gamache had worked 1,960 hours from April 1, 2001, to March 31, 2002, which, in its view, exceeded the number of hours to be worked per year, that is 1,956, by four. On that point, Mr. Gamache filed the employer's response at the final level of the grievance procedure (Exhibit F-7).

[9]    The employer called Bob Charlton, who is the person responsible for organizing the work schedules, to testify.

[10]    Mr. Charlton explained that shift schedules are designed on the basis of the number of correctional officers at the same classification level in an institution. Each line of a shift schedule represents a two-week work cycle. The shifts scheduled from April 2001 to March 2002 comprised 72 cycles, in view of the fact that there were 72 correctional officers. Each correctional officer received his or her schedule for two weeks, indicating the cycle which that officer worked on the shift schedule.

[11]    Thus, a correctional officer would work the cycle assigned to him or her for two weeks. The officer subsequently had to work the next cycle on the schedule, and so on, until he or she had worked all the cycles on the shift schedule.

[12]    Mr. Charlton filed a compilation (Exhibit E-2) of 72 lines, which showed the number of hours actually worked by Mr. Gamache and the number of days and hours to be worked, for a total of 5,400 hours.

[13]    According to Mr. Charlton, the shift schedule was perfectly balanced, since, if Mr. Gamache worked every cycle, he would work 5,400 hours in 144 weeks (that is 72 two-week cycles), representing an average of 37.5 hours a week.

[14]    Lastly, Mr. Charlton filed the previous shift schedule, comprising 60 cycles (Exhibit E-1).

Arguments

[15]    The grievor stated that he had meticulously checked his work schedules and that he had observed that it exceeded the total of 1,956 hours for each of the years.

[16]    The grievor relied on the definition of the weekly rate of pay in arriving at the total of 1,956 hours a year. Sub-clause 2.01(t) provides:

(t) "weekly rate of pay" means an employee's annual rate of pay divided by fifty-two point one seventy-six (52.176) (taux de rémunération hebdomadaire);

The weekly schedule of 37.5 hours multiplied by 52.176 equals 1,956 hours a year.

[17]    The employer, for its part, argued that, in this case, for the period commencing in April 2001, the shift schedule comprised 72 two-week cycles for a total of 144 weeks. The shift schedule thus covered nearly three calendar years.

[18]    The employer also argued in reply that the years 1998 to 2001 were time-barred and that, on the evidence adduced, Mr. Gamache's work schedules entailed an allocation equivalent to 37.5 hours per week for the 2001-2002 period. There were no excess hours and the grievance should be dismissed.

Reasons for Decision

[19]    To view this case in context, reference must be made to article 21 of the collective agreement signed on April 2, 2001, between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canda - CSN in respect of the Correctional Services group (codes 601 and 651), more particularly clause 21.02 and sub-clause 21.03(a):

Shift Work

21.02 When, because of the operational requirements of the service, hours of work are scheduled for employees on a rotating or irregular basis:

1. they shall be scheduled so that employees:

(i) on a weekly basis, work an average of thirty-seven and one-half (37 ½) hours,

and

(ii) on a daily basis, work eight (8) hours per day.

**

2. every reasonable effort shall be made by the Employer:

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

(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,

and

(iii) to avoid excessive fluctuations in hours of work;

3. they shall, except as otherwise required by a penitentiary emergency, be scheduled so that each shift ends not later than nine (9) hours after its commencement,

4. they shall be scheduled so that an employee will not be regularly scheduled to work more than eight consecutive calendar days. Exceptions may be scheduled at the request of an employee and with the approval of the Employer, or after consultation between the Employer and the Bargaining Agent,

5. they shall be averaged over a period (in weeks) no greater than the product of two (2) times the number of correctional officer positions at the same classification level at an institution,

6. an employee shall obtain at least two (2) days of rest at any one time.

21.03

**

1. Shift schedules shall be posted at least fourteen (14) calendar days in advance of the starting date of the new schedule in order to provide an employee with reasonable notice as to the shift he or she will be working. The shift as indicated in this schedule shall be the employee's regularly scheduled shift.

[20]    Four points in these provisions should be considered, and they may be summarized as follows:

1. the shift schedule must be established so that a correctional officer works an average of 37.5 hours a week;

2. the work schedule is a schedule of eight hours a day;

3. the average number of hours must be established over a one-week period not exceeding the product of two times the number of correctional officer positions at the same level;

4. work schedules are posted 14 days in advance.

[21]    The shift schedule prior to 2001 comprised 60 two-week cycles and thus covered 120 calendar weeks, that is more than two years.

[22]    I have no specific evidence as to when the work schedules are known, except that the correctional officers receive their work schedules for 14 days. Those schedules can in practice be changed, in that a rest day may be replaced by a training day, and so on. That day is subsequently taken as a rest day.

[23]    According to Mr. Charlton's testimony, Exhibits E-1 and E-2 only reflect changes and do not include annual or sick leave days, etc.

[24]    The appropriate time to file a grievance would thus be when the shift schedule is posted.

[25]    The other moment occurs if a correctional officer observes that the basic shift schedule is being changed, that he or she is being made to work more days in a week and the time is not recovered in the subsequent week or weeks.

[26]    The part of the grievance concerning the period from 1998 to 2001 does not meet the aforementioned tests. The grievance was filed in 2002 and cannot cover the period ending in 2001.

[27]    The other part of the grievance concerns the 2001-2002 period. The 2001 shift schedule comprises 144 weeks. According to sub-clause 21.02(e) of the collective agreement, the average number of hours must be established on the basis of that 144-week period.

[28]    A correctional officer may therefore file a grievance when he or she notices that the number of hours worked during a certain number of weeks exceeds that for the scheduled cycles and where the officer believes there is little chance of recovering those hours.

[29]    Thus, based on cycles 37 to 49 of Exhibit E-2, it may be seen that Mr. Gamache worked respectively 88, 64, 72, 88, 64, 80, 88, 64, 72, 88, 64, 72 and 88 hours.

[30]    The only way to validly apply article 21 of the collective agreement is to make it possible for the correctional officer to report any imbalance along the way. The opposite position would be to wait until the end of the period to see whether the shift schedule results in an average of 37.5 hours a week.

[31]    In this case, as the shift schedule began in April 2001 and extended over 144 weeks, it was not until early 2004 that it could be determined whether a correctional officer had worked an average of 37.5 hours a week.

[32]    As the previous shift schedule comprised 60 cycles, starting in 1998 and ending in April 2001, Mr. Gamache thus had the time to see whether any excess hours were worked. The grievance of March 14, 2002, cannot cover that period because it was filed late.

[33]    However, the grievance filed in March 2002 may cover a situation in which the number of hours was exceeded for the preceding weeks. It seems contrary to the intent of collective labour relations to declare the grievance as having been filed prematurely since the shift schedule extends to 2004.

[34]    In my view, the period concerned depends on each particular case. As noted above, a grievance may be filed from the moment the correctional officer notices a schedule imbalance and a failure to recover time in the following weeks.

[35]    As the cycles consist of seven to 11 days of work spread over two weeks, it is possible to establish in specific cases that, if the trend continued, Mr. Gamache would be unable to recover excess hours worked and that a correction or payment must be made.

[36]    I find, after an examination of the exhibits filed, that the compilation (Exhibit E-2) showed 5,400 hours over a period of 144 weeks, an average of 37.5 hours a week. Everything was equivalent. Mr. Gamache might have worked more hours in one week, but ultimately he worked an average of 37.5 hours.

[37]    In practical terms, I observe the following at lines 3, 4, 9 and 10. Mr. Gamache states (Exhibit F-3) the number of days worked and the employer (Exhibit E-2) the number of days worked, as follows:

Gamache		Employer
Line 3: 10 days		9 days (72 hours)
Line 4: 10 days		11 days (88 hours)
Line 9: 11 days		9 days (72 hours)
Line 10: 9 days		11 days (88 hours)

[38]    These are the only differences in figures that I observe from lines 61 to 71 and lines 1 to 13 covering the period from April 2001 to March 2002.

[39]    There is thus no schedule imbalance compromising an actual average of 37.5 hours per week, since I note that the time was recovered.

[40]    The 144-week shift schedule provides for an average of 37.5 hours a week, and the hours worked by Mr. Gamache, based on the exhibits filed, were consistent with that average at the time the grievance was filed.

[41]    The schedule from lines 61 to 71 and 1 to 13 represents 1,888 hours for 50 weeks. However, Exhibit F-5 covers only 50 schedule weeks, and, and if two four-day weeks (64 hours) are added to the start or end, the result is 1,952 hours for an average of 37.5 hours over 52 weeks. This is only a theoretical exercise, since, as explained above, the shift schedule is based on 144 weeks.

[42]    Having regard to the fact that, based on the evidence adduced, the shift schedule for 2001 and following years provides for an average of 37.5 hours a week and that the schedules for 1998 to 2001 are time-barred, the grievance, since it was filed in March 2002, is dismissed.

Jean-Pierre Tessier,
Board Member

OTTAWA, July 26, 2004

P.S.S.R.B. Translation