HomeMy WebLinkAboutGoossens 06-02-02IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR SUPPORT STAFF EMPLOYEES)
(the "Union")
-- AND -
FANSHAWE COLLEGE
(the "College")
AND IN THE MATTER OF THE GRIEVANCE OF HAROLD GOOSSENS
(CALL BACK) - OPSEU GRIEVANCE NO. 2005-0109-0002 (#510902)
BOARD OF ARBITRATION Robert D. Howe, Chair
Ed Seymour, Union Nominee
John Podmore, College Nominee
APPEARANCES
For the Union Mary Anne Kuntz, Senior Grievance
Officer
Jean Fordyce
Margaret Rae
Harold Goossens
For the College Robert J. Atkinson, Counsel
David Evans
A hearing in the above matter was held in London, Ontario,
on January 11, 2006.
AWARD
Through a grievance dated January 18, 2005, the
grievor, Harold Goossens, is seeking call back pay under the
following provision of the applicable collective agreement:
6.4 Call Back
Where an employee has completed his/her regularly
scheduled hours of work and is subsequently called back
before the commencement of his/her next regularly
scheduled shift, he/she shall receive payment for all
hours worked at the applicable overtime rate with a
minimum guarantee of four (4) hours overtime at time
and one-half his/her regular rate of pay except to the
extent that such period of four (4) hours overlaps or
extends into his/her regular hours of work. It is
understood that this provision has no application in
cases of change in an employee's regular hours of work
or scheduled overtime including overtime commencing
immediately following the completion of an employee's
regular schedule of work.
The grievance also alleged a violation of Article
6.3.1, which provides:
There shall be no split shifts during the term of this
Agreement.
However, at the commencement of her opening statement, Senior
Grievance Officer Mary Anne Kuntz indicated that the Union was
only relying upon Article 6.4 in these proceedings, and was no
longer alleging a violation of Article 6.3.1.
Facts
The parties agreed to argue the case on the basis of
the following agreed facts, as stipulated by College counsel
during the course of his opening statement:
The grievor is employed as an electrician at the
College. He works at the London campus. He works a
forty hour week. His regular hours are Monday to
Friday 7:00 a.m. to 3:30 p.m. The grievor is certified
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to work on fire alarm systems. There are three other
electricians employed by the College who have the fire
alarm certification.
The grievor's supervisor is Wayne Sippola, the
College's Facilities Maintenance Supervisor.
The College made arrangements to replace the ceilings
in the corridors on the second and third floors of
"F" Building on the College's London campus. The
College engaged the services of an outside contractor,
Harding Drywall ("Harding"), to do the work. The
College arranged for the ceiling work to be performed
by Harding on Saturday January 8 and Sunday January 9,
2005.
The campus has fire call-out systems which alert third
parties (such as police, fire department, and security)
of a possible fire. The College decided that it would
be appropriate to have the fire call-out system related
to the part of "F" Building that was being worked on
disabled while the ceiling work was being performed.
Disabling the fire call-out system has two steps:
(1) making an adjustment in the monitoring computer
system located in the contact centre of the College,
which is located in "D" Building; and
(2) then proceeding to the relevant firepanel in "F"
Building where the work was being performed, and
flipping a switch there.
Enabling the system requires the reverse process.
The College decided to have the work of enabling and
disabling the system for "F" Building performed by an
electrician with the fire alarm certification. On
Wednesday January 5, 2005 (three days in advance of the
first part of the work to be done), Mr. Sippola asked
the grievor if he'd like to do the disabling/enabling
work on the following weekend. Mr. Sippola advised the
grievor that the work would involve coming in at
approximately 8:00 a.m. on both Saturday and Sunday of
that weekend to disable the fire call-out system, and
then returning each afternoon of the Saturday and
Sunday at approximately 4:00 or 5:00 p.m. to enable the
system again. The College estimated that each visit
would require not more than an hour. Accordingly, Mr.
Sippola advised the grievor that if he accepted the
work, he would be paid one hour at the applicable
overtime rate. Mr. Sippola also advised the grievor
that the work was scheduled overtime and not subject to
the call back provision of the collective agreement.
Mr. Sippola sent the following e-mail message to the
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grievor at 2:46 p.m. on Wednesday January 5, 2005:
Subject: Weekend overtime
An electrician is required to disable the fire
alarms in F and D on Saturday January 8, 2005
and probably Sunday January 9, 2005, to
facilitate removal of the ceiling in F 2nd and
3rd floor.
This involves coming in to disable the system in
the morning and returning to enable the system
at the end of the day.
It is scheduled overtime and not subject to the
4 hour callin/callback.
Please let me know if you are willing to work.
Thanks
On Thursday January 6, 2005 at 7:42 a.m., Mr. Sippola
sent the following e-mail to his boss, Doug Crinklaw,
who is the College's Manager of Facilities Maintenance
Operations:
Subject: shutdown of fire alarm
for F renovations
Harold has agreed to come in and disable/enable
for Harding drywall. Work will commence at 8:00
a.m. I have informed him he will receive one
hour of the applicable overtime rate per visit.
The grievor accepted the arrangement with the knowledge
of what the work involved, and what the time and pay
would be. The grievor completed his regular work week
that week and then performed the disabling and enabling
work on the Saturday and Sunday of that weekend, making
a total of four visits. The grievor's attended at the
College for about one-half hour on each visit.
The ceiling work was not completed on that weekend and
was therefore scheduled for completion on the following
weekend, January 15 and 16, 2005. During the week
leading up to that weekend, Mr. Sippola asked the
grievor if he would like to perform the disabling/
enabling work that he had performed the previous
weekend, on the same basis as what happened the
previous weekend. The grievor agreed. He performed
the work on January 15 and 16 in a similar way and
for a similar time.
For the work on the Saturdays, the grievor was paid
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for two hours (one in the morning plus one in the
afternoon) at time and one-half. Thus, on each
Saturday he got three hours' pay (for a total of
six hours' pay for the two Saturdays). On each of the
two Sundays, he was paid for two hours (one in the
morning and one in the afternoon) at double time;
i.e., four hours total on each Sunday (for a total of
eight hours). His total pay for the two week-ends was
fourteen hours.
Collective Agreement Provisions
In addition to Article 6.4 (as quoted above),
reference was made the following provisions of the collective
agreement during the course of argument:
6. WORK SCHEDULES
6.1 Hours of Work
6.1.1 Normal Work Week
The normal work week for employees will be:
- thirty-five (35) hours per week or seven (7)
hours per day,
- thirty-six and one-quarter (36 1/4) hours per
week or seven and one-quarter (7 1/4) hours
per day,
- thirty-seven and one-half (37 1/2) hours per
week or seven and one-half hours per day,
- forty (40) hours per week or eight (8) hours
per day,
as designated by the College, and scheduled on
five (5) consecutive days except with respect to
employees engaged in continuous operations or on
special shifts.
6.2 Overtime
6.2.1 Overtime Rate
An employee shall be paid at the overtime rate of
time and one-half the employee's hourly rate for
authorized work performed:
- consisting of a work period of at least
one-quarter hour in a day over the normal
daily hours designated by the College of seven
(7), seven and one-quarter (7 1/4), seven and
one-half (7 1/2) or eight (8) for the
employees concerned; or
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- consisting of a cumulative work period of at
least one-half hour over the normal work week
of thirty-five (35) , thirty-six and
one-quarter (36 1/4), thirty-seven and
one-half (37 1/2) or forty (40) hours per
week as may be designated by the College for
the employees concerned; or
- on an employee's sixth day of work in the week
concerned.
6.2.2 Seventh Day - Double Time
Employees referred to in Article 6.1.1 shall be
entitled to payment at the overtime rate of
double the employee's hourly rate for all
authorized work performed on the employee's
seventh day of work in the week concerned.
6.2.5 Overtime Rights
The parties to this Agreement recognize that
College operations may require the performance of
overtime work and that employees will co-operate
in the performance of such work. The College
will advise employees of required overtime as
far in advance as practicable'and, in any event,
will give notice of scheduled overtime required
prior to the conclusion of the preceding work day
except in circumstances beyond its reasonable
control. The College agrees to attempt to
distribute available overtime work as equitably
as practicable amongst qualified employees in
the work groups in which overtime work is
required ....
Summary of the Union's Submissions
Article 6.4 is a stand-alone provision which is clear
and unambiguous. Entitlement to call back pay is triggered
under that article whenever an employee has completed his/her
regularly scheduled hours of work and is subsequently called
back to work before the commencement of his/her next regularly
scheduled shift. Although there is some arbitral controversy
regarding whether an employee has to return to the workplace
to trigger entitlement to call back pay, virtually all
arbitrators agree that returning to the workplace triggers
entitlement. The fact that the grievor had some advance
notice of the work does not disentitle him to call back pay
under that provision. The inconvenience of returning to the
workplace triggers the entitlement. The fact that there were
two distinct periods of work on each of the four days
increased the inconvenience factor. The grievor's knowledge
that he was going to be inconvenienced does not alter the
applicability of Article 6.4, as that provision makes no
reference to relative inconvenience. If the parties had
intended to differentiate between degrees of inconvenience,
they would have written something more into Article 6.4.
It was not open to the College to make a deal with
the grievor that he would return to the College to perform
work on the weekend without receiving call back pay. The
College cannot contract out of the requirements of Article 6.4
by characterizing the work as scheduled overtime. Moreover,
the concept of call back should not be read so literally as
advocated by the College. If the parties had intended to
exclude situations where an employee is given some advance
notice of the call back, they would have defined it in that
way. Article 6.2.5 does not define "scheduled overtime"; it
simply sets out what the College will adhere to if the need
for overtime arises.
The work which the grievor was assigned in this case
was not overtime within the meaning of Article 6.2.1, nor was
it captured by Article 6.2.5. The last bullet in Article
6.2.1 can only be construed as referring to an employee being
scheduled to work an overtime day. Characterizing the
grievor's Saturday and Sunday work as scheduled overtime would
subvert the intent of Article 6.4. St. Lawrence College and
OPSEU (Grievance of Beth McLean; 2002-0418-0002), unreported
award dated June 7, 2004 (Simmons) is close to being on all
fours with the present case. The Metropolitan Toronto case
referred to by College counsel is distinguishable from the
instant case, as it is more related to overtime that is
contiguous to the regular work day.
Alternatively, even if the grievor's first trip to
the College on each of the four days could be characterized as
scheduled overtime, the return trip on each of those days
cannot be anything but call back because Article 6.3.1
precludes split shifts. It was not open to the College to
assign two shifts in one day.
Summary of the College's Submissions
The work performed by the grievor was scheduled
overtime work under the overtime provisions of the collective
agreement, and was not a call back. The onus is on the Union
to establish a breach of Article 6.4. That provision, when
read both literally and purposively, does not apply on the
undisputed facts of this case. Article 6.1.1 describes the
normal work week very generically, without mentioning days of
the week, and Article 6.2 deals with overtime in a manner
which is consistent with that approach. The grievor was
entitled to be paid overtime for the work which he performed
on Saturday and Sunday because it was authorized work
performed on his sixth and seventh day of work in each of the
two weeks concerned. The second sentence of Article 6.2.5
indicates that overtime is scheduled if notice of the overtime
has been given prior to the conclusion of the preceding work
day. This applies not only to overtime work performed on one
of the employee's normal five working days, but also to
overtime work performed on the employee's sixth or seventh day
of work. The notice requirement is there for the employees'
benefit, and it would be a disservice to them to exclude sixth
and seventh day overtime from that requirement.
The facts of this case do not fit within Article 6.4.
The grievor was not "subsequently called back" before the
commencement of his next regularly scheduled shift. He had
ample notice of the overtime that he was being scheduled to
work on Saturday and Sunday. Article 6.4 only applies when
notification of the work is given subsequent to the completion
of an employee's regularly scheduled hours of work. Thus, the
facts of this case do not fit into the first sentence of
Article 6.4. If there is any doubt about that, the second
sentence of that provision clearly indicates that it has no
application in cases of scheduled overtime, including but not
limited to overtime commencing immediately following the
completion of an employee's regular schedule of work.
Consequently Article 6.4 does not apply to the work in
question, because it was scheduled overtime as defined in
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Article 6.2.5.
The interpretation advanced by the Union flies in the
face of the wording of Article 6.4 and the purpose of that
provision, which is to compensate for the disruption to an
employee's personal life caused by an unanticipated call to
come back to work. The hallmark of the disruption which
triggers entitlement to call back pay is lack of notice, and
not the mere fact that an employee performs work during what
would otherwise be nonworking time. The purpose of such
provisions is discussed in Re Municipality of Metropolitan
Toronto and Metropolitan Toronto Civic Employees' Union, Local
43 (1997), 49 C.L.A.S. 408 (Howe). St. Lawrence College and
OPSEU (Grievance of Beth McLean; 2002-0418-0002), supra, is
completely different from the instant case in that it did not
involve a pre-arranged commitment to work scheduled overtime.
The Union's alternative argument cannot succeed
because Article 6.3.1 is concerned with regular shifts and
there is nothing in Article 6.3 which speaks to how overtime
work is arranged. The collective agreement does not talk
about overtime shifts, it only talks about overtime work. It
therefore would be a misreading of the collective agreement to
find that Article 6.3.1 somehow applies to call back work
under Article 6.4 or overtime arrangements under Article 6.2.
Moreover, Article 6.3.1 is not in issue in these proceedings
as the Union has indicated that it is not alleging a breach of
that provision.
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Decision
In support of the grievor's claimed entitlement to
call back pay, the Union relies upon St. Lawrence College
and OPSEU (Grievance of Beth McLean; 2002-0418-0002), supra,
in which the majority of an arbitration board chaired by
Arbitrator Simmons concluded that Article 6.4 can apply to
work situations which do not require an employee to return to
the campus. In that case the grievor, who was the coordinator
of physical resources at St. Lawrence College's Brockville
campus, was paid overtime for unscheduled work (consisting of
receiving and dealing with various telephone calls, including
calls from the police and from campus security) which she
performed at home outside of her regular working hours. The
college denied her claim for call back pay on the grounds that
she had not returned to the campus to perform any of the work.
In concluding that the case involved a call back rather than
an overtime situation, the majority wrote, in part, as follows
at pages 18-19:
... the philosophy of overtime work is captured, in
our view, in art. 6.2.5 which addresses "Overtime
Rights" Here the parties recognize overtime may be
required from time to time. Employees undertake to
cooperate in performing overtime work and the college
undertakes to give advance notice to employees required
to work the overtime. The college also undertakes to
distribute overtime equitably among the workforce and
to excuse employees from performing overtime work where
undue hardship would result. In the event a valid
complaint of improper distribution of overtime is made
out the college gives an undertaking to correct it. It
is apparent the parties contemplated the performance of
overtime as being a prearranged extension of work
beyond the employee's regularly scheduled hours of work
by means of providing prior notice to the employee and
the acceptance by the employee to perform the required
overtime work.
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This is quite different from the instant situation
in that there has been no prearranged commitment to
perform any specific job of work. She is at liberty to
do anything she wishes outside of her regularly
scheduled hours of work. She has committed herself
to performing any job of work on behalf of the
college that might come to her by telephone during
non-regularly scheduled work hours. Unlike the
scheduling or prearranging of specific overtime work,
this would not have been prearranged. She is at
liberty to do whatever she pleases without any
obligation to the college. But upon receiving the
phone call, she must drop anything she may be doing at
the time and devote her full attention to the needs of
the college. She has now been called back to duty.
There has been an unpredicted problem that has arisen
which requires her attention. She may be able to
resolve it over the phone or she may be required to
return to the college depending on the circumstances of
the problem. In our view, this is not an overtime
situation that the parties contemplated in art. 6.2.1
or 6.2.5 ....
As contended by counsel for the Employer, the instant
case is clearly distinguishable from the St. Lawrence College
case. Unlike the situation in that case in which there was no
prearranged commitment by the grievor to perform any specific
job of work, Mr. Goossens was given advance notice of the
specific overtime work to be performed and agreed to perform
it. If the request that the grievor perform the Saturday and
Sunday work in question had not been made until after he had
completed his regularly scheduled hours of work on the
preceding Friday, he might well have been entitled to receive
call back pay for that work pursuant to Article 6.4 of the
collective agreement. However, the grievor was offered and
accepted the work during each of the preceding weeks. The
offer of the overtime work to be performed on Saturday January
8th and on Sunday January 9th, was made by the grievor's
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supervisor on Wednesday January 5, 2005, and the grievor had
accepted it by Thursday morning January 6, 2005 (as indicated
by Mr. Sippola's e-mail to Mr. Crinklaw). The agreed facts
also indicate that during the ensuing week, Mr. Sippola asked
the grievor if he would like to perform the same work on
Saturday January 15 and Sunday January 16, 2005, and the
grievor agreed to do so. Thus, the grievor's situation does
not fall within the ambit of Article 6.4, as he was not called
back subsequent to having completed his regularly scheduled
hours of work.
The advance notice which the grievor received
regarding that overtime work also precluded him from being
entitled to receive call back pay because it made the work
in question "scheduled overtime" In this regard, we
respectfully agree with College counsel's contention that if
the College notifies an employee of an overtime opportunity
"prior to the conclusion of the preceding work day" in
accordance with Article 6.2.5, such overtime constitutes
"scheduled overtime" to which Article 6.4 is inapplicable
by virtue of its concluding sentence, which reads: "It is
understood that this provision has no application in cases of
change in an employee's regular hours of work or scheduled
overtime including overtime commencing immediately following
the completion of an employee's regular schedule of work."
The grievor was entitled to (and received) overtime pay at the
rate of time and one-half his hourly rate for the Saturday
work which he performed, because it was in each of the two
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weeks "authorized work performed ... on [his] sixth day of
work in the week concerned", within the meaning of Article
6.2.1. He was similarly entitled to (and received) overtime
pay at the rate of double his hourly rate for the Sunday work
which he performed, because it was in each of the two weeks
"authorized work performed on the employee's seventh day of
work in the week concerned", within the meaning of Article
6.2.2. However, he was not entitled to call back pay for that
work because the parties have expressly agreed in Article 6.4
that the provision has no application in cases of scheduled
overtime.
It is a basic principle that the language of the
collective agreement which the parties have bargained governs
their rights and obligations. The words used by the parties
in their collective agreement must be given full and fair
weight, and their plain and ordinary meaning. Applying that
approach to the circumstances of the present case has led us
to conclude that the grievor was not entitled to call back pay
because he was not "subsequently called back" within the
meaning of Article 6.4, and because he was performing
"scheduled overtime" to which that provision "has no
application". Applying a purposive approach to the
interpretation of that provision yields a similar result.
As indicated in Re Municipality of Metropolitan Toronto and
Metropolitan Toronto Civic Employees' Union, Local 43, supra,
one of the purposes of call back pay provisions is to
compensate for the inconvenience and social disruption which
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may be experienced by an employee as a result of receiving and
complying with an unexpected telephone call requesting the
employee to report for work at an unanticipated time. Such
inconvenience might well have been experienced by the grievor
if the College had not contacted him regarding the weekend
overtime opportunity until after the completion of his
regularly scheduled hours of work on Friday January 7, 2005
(or on the following Friday). However, the advance notice
which he received enabled him to plan accordingly, thereby
reducing or eliminating that inconvenience. As indicated in
paragraph 26 of the Metropolitan Toronto case, a panel of the
Ontario Labour Relations Board chaired by Arbitrator Tacon
wrote, in part, as follows in Re Ontario Hydro and Ontario
Allied Construction Trades Council (1984), 16 L.A.C. (3d) 207,
in commenting on the significance of the timing of the notice
given to the employee:
... The board would distinguish work under the call-in
article from overtime ... on the basis of the timing of
the notice. That is, where the employee is called in
from home and must report for work without prior
warning, the "work" performed is more properly
characterized as call-in, rather than overtime.
As indicated above, at the commencement of the
hearing the Union elected not to pursue the violation of
Article 6.3.1 alleged in the grievance. Thus, the issue of
whether the College violated that provision by scheduling two
noncontiguous hours of overtime on each of the four days is
not before us for determination in these proceedings (nor is
the issue of what remedial relief would be appropriate to
redress a violation of that provision).
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For the foregoing reasons, the grievance is hereby
dismissed.
DATED at Burlington, Ontario, this 2nd day of February, 2006.
Robert D. Howe
Chair
I concur.
"Ed Seymour"
Union Nominee
I concur.
"John Podmore"
College Nominee
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