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HomeMy WebLinkAbout1986-0077.Harvey and Cutrone.87-06-27EWLOYtS DE Lp. COURONNE OEL’ONmw CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS 0077/86, 0078/86 0079186, 0080/86 IN TRR NATTER OF AN ARBITBATION Under TRB CROWN RMPLOTEES COLLECTIVE BARGAINING ACT Before TRE GRIEVANCE SETTLENRNT BOARD BETWEEN: OPSEU (J. Harvey,~ R. Cutrone) Grievers Before: The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer For the Grievor: For the Employer: D. Bradshaw Staff Relations Advisor Ministry of Transportation & Communications Hearing: July 23, 1987 J. Forbes-Roberts Vice-Chairman G. Nabi Member W.A. Lobraico Member R. R. Wells Counsel Gowling and Henherson Barristers and Solicitors The instant matter involves four grievances by two employees. In point of fact there is only one issue, whether or not the employees when performing overtime work are entitled to a call back allowance. The parties proceeded on the following Agreed Statement of Facts: 1) 2) 3) 4) 5) Ralph Cutrone and Jay Harvey both grieve that they 'I... have been denied the full overtime credits provided for in Articles 13 and 14 of Collective Agreement, but not exclusively..." for the dates of Saturday, January 19 and February 2, 1986. On Thursday, January 9, 1986, Zen Byblow, Head, Surveys and Plans, Central Region, provided the grievors with a memorandum (Appendix A) confirming overtime arrangements for the Sundays of January 19 and 26, 1986, both scheduled days- off for the grievors. On January 19, 1986, the grievors performed only two hours of work due to inclement weather. The grievors submitted their time sheets for that day, requesting four hours of pay at the straight time rate for travel-time and also requesting four hours pay at ,the overtime rate. The employees were paid the four hours travel- time but were denied the four hours pay at the overtime rate. Instead, the employer paid the grievors two hours at the overtime rate, reflecting the actual number of hours worked. On Wednesday, January 29, 1986, Zen Byblow provided the grievors with a memorandum (Appendix B) rescheduling the work of January 19 and 26, 1986, for the Saturdays of February 2 and 9, 1986. The two February dates were also scheduled days-off for the grievors. On February 2, 1986, the yrievors performed only one-half hour of overtime work due to inclement -l- I,. ‘.* 5 -2- ) weather. The grievors submitted their time sheets for that day, requesting four hours pay at the straight-time rate for travel- time and also requesting four hours pay at the overtime rate. The employees were paid the four hours travel-time but were denied. the four hours pay at the overtime rate. Instead the employer paid the grievors one- half hour at the overtime rate, reflecting the actual number of hours worked. .The parties submit this agreed statement of facts with the understanding that either party is at liberty to adduce additional, but not contradictory, evidence in support of its position. The grievors occupy the classification of Technician III in the Surveys and Plans Department, Central Region. Their works site is in the field, and can vary from day to day. Typically, they report directly to the site and not to the Employer's headquarter's located at Yonge and Warden. Article 23 of the Collective Agreement is entitled, "Time Credits While Travelling". Article 23.3 provides: 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. Grievor Jay Harvey testified as to the Article's practical application. Employees are allocated travel time theoretically based on the distance between headquarters and the site, even though they do not actually go to headquarters. The grievor also testified that regular shifts are Monday to Friday, 8:00 am to 5:00 pm in winter and 7:00 am to 6:00 pm in summer. There is never overtime on a typical day. In other words overtime is typically performed on Saturdays or Sundays, the employees' regular days off. Travel credits when performing overtime work are dealt with in article 23.5. 23.5 When an employee is required to travel on his regular day off or a holiday listed in Article 48 (Holidays), he shall be credited with a minimum of four (4) hours. This guarantees four hours payment, whether the employee actually performs any work or not. The grievors were paid in accordance with this Article. The relevant portions of Article 13, Overtime are as follows: 13.1 The overtime rate for the purpose of this Agreement shall be one and one- half (If) times the employee's basic hourly rate. 13.2 In this Article, "overtime" means an authorized period of work calculated to the nearest 'half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. The grievors were also duly paid in accordance with these provisions. At issue is the effect of Article 14 - Cal .1 Back. It . ., :- * -4- provides as follows: 14.1 An employee who leaves his place of work and is subsequentily called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of (4) hours' pay at one and one-half (If) times his basic hourly rate. It is the Union's contention that the grievors were also entitled to the minimum four hours pay at time and one-half provided for in Article 14.1. We cannot accept the Union's position. We are prevented first by the clear language of Article 14. It speaks of an individual who "... leaves his place of work and is subsequely --..~_ called back .-A -prior to... his next scheduled shift..." (emphasis added). The required sequence of events is very clear - leave, called back in ahead of schedule. That is not the sequence of events before us. In the case of the first grievances, the grievors were notified at work by memo that they were to perform overtime on January 19, 1986 and January 26, 1986. Notification occured on January 9, 1986 - a minimum of six clear regularly scheduled work days before the overtime was to occur. In the case of the subsequent two grievances written notification occured at least two clear regularly scheduled work days in advance. How then can it be said that the grievors were called back Eior to their next .-.-.A scheduled shift? ----.~ We are further prevented from accepting the Union's position A purposive reading of Article 14 makes clear the mischief it was meant to remedy. An employee’s life is substantially disrupted when he or she must on short notice come to work early. Hence the guarantee of four hours at time and one-half. The Union would have this Board find that the Call Back provision is equivalent to a Reporting Allowance - a provision commonly found in collective agreements. Indeed in the instant agreement there is' such an Article. Article 19.1 states: 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (741, eight (81, or the number of regularly scheduled hours, as applicable. Clearly the parties have turned their minds to the circumstances in which there will be a guaranteed minimum number of hours credited, despite actual hours worked. To find that the Call Back provision is equivalent to a Reporting Allowance would be in breach of Article 27,16 which states: 27.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. The grievances are hereby dismissed. In reaching this decision, the Board considered Rich (GSB 442/82), and --l -6- re: Webster Manufacturing (London) Ltd. (1971) 23 LAC 37 I ~.~_-- _ (Weiler). Dated at Toronto this 27th day of June, , 1987. G. Nabi -Member