GSB#2007-1766

UNION#2007-0603-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Derry)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

October 10, 2008.

Decision

1This decision concerns a group grievance filed by Mr. Roland Derry, a seasonal employee employed as a crew leader out of the Ministry’s Wawa Fire Management Headquarters. The grievance, filed on behalf of Mr. Derry’s crew, claims that the employer violated articles 2, 3 and 32 of the collective agreement by denying the employees’ claim for overtime pay for certain hours worked on August 17, 2007.

2The parties referred this matter to me pursuant to the Mediation/Arbitration procedure set out in article 22.16 of the collective agreement.

3On August 17, 2007, the employees forming the Derry crew were stationed at the Elliot Lake airport on red alert. The shift ended at 8:00 p.m.. Two other fire crews were at that airport at the same time on red alert, and also finished at 8:00 p.m.. The evidence is that the employer had arranged for the Derry crew to stay overnight at a hotel called the Frontier Lodge, which was located North of the City of Elliot Lake, because the hotels in the city were sold out due to a cycle race taking place at the time. Having completed the shift at 8:00 p.m., the grievors proceeded to a restaurant in Elliot Lake to take out dinner. Since the restaurant was extremely busy, there was an unusually long wait for the food. They reached the Frontier Lodge at 10:30 p.m.. The grievors filed a claim for 2½ hours overtime pay. They were paid only for one hour. In this grievance they claim for the 1½ hours denied.

4Filed in evidence is a protocol, which envisages a period of one half hour for a red alert crew to be at the hotel after alert time ends. Thus, it was the employer’s practice under this protocol to pay one half hour of overtime pay following a red alert shift. In the present case, however, the manager, Mr. David Bronson, approved an additional one half hour of overtime in recognition of the fact that the accommodation arranged was located not in the city as usual, but some distance north of the city. The grievors’ claim essentially is based on the unusual delay they experienced at the restaurant, waiting for their food order.

5While article 3 (prohibition of discrimination by reason of a listed ground) and article 32 (seasonal employees) are listed in the grievance form, no case was made out that either article was violated. I find that there is no right under either provision to support the claim for the overtime in question.

6The union’s primary position was that the period in question constituted work time. The basis for this position was that the grievor had “the care and control” of a Ministry vehicle from the end of shift until he reached the hotel, and further that he was responsible for the crew members who were in his company at the time. I find that the evidence does not indicate that Mr. Derry or any of the crew members were “at work” or that the time in question was “work time”. Merely because Mr. Derry was allowed to take a Ministry vehicle to transport himself and his crew members, that does not convert the time into work time. None of the grievors were obligated to travel in the Ministry vehicle, or to use that period of time in a particular way for the employer’s benefit. The time was theirs to use as they wished.

7It is apparent that the real trigger for the grievance is the fact that the members of the other two crews claimed, and were paid, overtime for the entire 2½ hour period. Thus the claim of discrimination.

8Mr. Barclay submitted that the employer could, and should have paid the additional overtime in consideration of the extra-ordinary circumstances that prevailed in Elliot Lake that night. He pointed out that the Sector Response Officer had approved the grievor’s total claim of overtime by initialling the time sheets. It was submitted that the denial of the grievors’ claim was unjust, particularly considering that the two other crews were paid in identical circumstances.

9While the employer claimed that the payment of overtime for the full 2½ hours to the other two crews was a result of a “mistake”, there is no evidence to support that. Nevertheless, the evidence is that those two crews were from different districts, which did not come within the jurisdiction of Mr. Bronson. Therefore, at best we have a situation where one manager has exercised his discretion less generously than other managers. This justifiably creates a sense of unfairness. However, it does not create an enforceable right. In the absence of some ulterior motive or bad faith, the grievors have no contractual or other legal right to demand that Mr. Bronson exercise his discretion in the same manner as other managers. Mr. Bronson applied the protocol, and approved an additional one half hour of overtime in recognition of the unusual circumstances. However, he was not as generous as the other managers. That does not give rise to a right under the collective agreement. I also note that the Sector Response Officer is a bargaining unit member, and would not be entitled to approve overtime. Therefore, his initialling of the time sheets has no legal consequences. The evidence is that only the manager had authority to approve overtime.

10For all of the foregoing reasons the grievance is denied.