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HomeMy WebLinkAboutMcLean 04-06-07 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS & TECHNOLOGY (ST. LAWRENCE COLLEGE) (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF MS BETH McLEAN (2002-0418-0002) (the "Grievor") BEFORE: C. Gordon Simmons, Chair Ms Ann Burke, Employer Nominee Ms Sherril Murray, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Ms J. Lynn Thomson, Counsel Mr. Patrick Robinson, Studeni at Law Ms Cindy Bleakne¥, Human Resources Department Mr. Blayne Mackey, Project Manager APPEARANCES ON BEHALF OF THE UNION: Mr. Eric O'Brien, Grievance Officer Ms Sara Manoll, Steward Mr. John Molleson, President, Local 418 Ms Beth McLean, Grievor Hearings into this matter were held in Kingston, Ontario on April 10, 2003; February 6 and March 22, 2004. The statement contained in the grievance succinctly describes the essence of the issue in dispute. It reads (ex. 1): I grieve that I have not been paid for Call Back in accordance with Articles 6.4 & 6.8 and any other article which may apply. On these dates, I received telephone calls at home which required me to respond in accordance with my job description. The statement goes on to set out Articles 6.4 and 6.8 as follows: 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. 6.8 Work at Home Where the College requires and assigns the performance of work by an employee at home, it shall be subject to all the provisions of this Article save and except Article 6.5. Because art. 6.5 is referred to in art. 6.8, art. 6.5 should be included and reads as follows: 6.5 Meal Allowance Where an employee is required to work more than three (3) continuous hours on completion of his/her regular shift and has not been given notice of such overtime on the prior day or before, he/she shall be entitled to a meal allowance not to exceed ten dollars ($10.00). The grievance continues to state the grievor seeks compensation "for all hours worked on September 3 and 22, 2002. -3- The facts a.re as follows. The grievor's position title is "Coordinator, Physical Resources". Her classification is "Technologist Atypical". Basically, the grievor is coordinator for the following physical resources at the Brockwille campus (ex. 3): BROCKVILLE ! KINGSTON Coordinator Physical Resources Beth McLean BROCKVrLr.F. CAMPUS . . ~....~,;:~ !.;.'..~ ..... .. /, ~,~ ~ ~ ~.,- ,..~,....,: ~ · · ,-~: Marriott Contract Security Contract Keys System Cleaning Personal Interior-Finishes/Repairs Pest Control Fire Light Tubes Floor Care Bomb Threats Toilets Moves Garbage Removal Building Furniture Repairs Stocking Toilet Supplies Bank Deposits Set-Ups Moving Furniture Access Control Special Set-Ups Lost & Found Storage of Materials Information Recycling Health/Safety Liaison Solid Waste Hazardous Waste Regulatory Requirements Contract Malntenauce Control Nontraditional Charge Plant Maintenance Lot Maintenance Use HVAC Lot Construction Tenant Liaison -climate control Lot Lighting Design -equipment operation Pavement Construction -heating Access Management -humidity Safety -air conditioning Snow Removal -preventative mntc. Sanding/Salting -contract maintenance Vehicles Energy Mngmt Systems New Construction/ Renovations Project Management Computer-Aided Facilities Management Plant Operations Energy Conservation Building Services-:'.': (,'%:!': i"~Space.''' . ii:?~f'~'~ii~:i~!i'~iii'!~'~l~:ti!!!!~.[ !:ii:~" :?':~?~ Roofing Space Utilization Grounds Contract Structural Envelope Planning Cutting Grass Construction Leased Space Planting Flowers Elevators Estimating Garbage Pick-up Project Management Setting Priorities Athletic Field Mntc. Computer-Aided Decommissioning Facilities Management Architectural Specifications Sl~pp~g/Receiving ': ":'~ Group Leader Note:_ ~he Kfn~.~ton C.~rnpus~zesponsfl~]~ties_were. ~s.cfgnec[ ...... to another employee cornrnencing in August 2001. The grievor's regular hours of work are between 8:00 a.m. and 5:00 p.m. (unless she foregoes lunch in which event her work ends at 4:00 p.m.). Her responsibilities continue outside normal work hours on a 24 hour basis as well as during weekends. That is, her name and phone number are the first contact on the list of available personnel in the event of any telephone calls being made to the college during non-working hours. Calls from the fire department or police readily come to mind when those services are required. The college is also a landlord with tenants on the campus which may require attention from time to time. The parties informed the Board they were in agreement that past practice is not in issue in this case. Prior to September 2002 the grievor had consistently followed the practice of taking lieu time off instead of claiming overtime payment. She stated she has followed this practice since 1991. Apparently, although the Board was not informed of the details, a problem had occurred at the Cornwall campus relating to hours of work and vacations. The grievor, along with coordinators at the Comwall and Kingston campuses had their hours of work changed from 35 to 40 hours per week. Also, starting in September 2002 the grievor elected to claim overtime instead of following her usual practice of taking time off in lieu. Thus, in September 2002 the grievor submitted a signed time sheet form indicating she performed work outside her regular hours of work. She did not fill in the "hours worked" portion of the time sheet but attached a Post-It Note to the form which read (ex. 6, p. 1): -5- Sept. 3/02 6:51 pm Call from Police re arrested janitors court case (this was reported to Blayne on voice mail). Sept. 3/02 7:16 pm Call from security re unlocked garage. Sept. 22/02 9:16 am Call from police re access by Recki teacher - call guard - The time sheet form was submitted to her supervisor, Mr. Blayne Mackey. Having left the hours of work blank prompted a meeting with Mr. Mackey at which time she described what her involvement had been. He then inserted in the "Hours Worked" portion "1", meaning one hour was to be paid at 1.5x for the work performed on each of September 3 and 22. The Board was informed by the grievor she was paid for September 3 but not for September 22. The grievor claims she is entitled to be paid four hours minimum pursuant to art. 6.4 for the call backs she was required to devote her attention to the employer's business outside of her regular hours of work. At this point it might be appropriate to relate what the grievor told the Board happened on the two days in question. Insofar as September 3 is concemed we must rely on what she wrote on the Post-It Note. We know she received two phone calls within a period of 25 minutes. We also ki~ow she reported the results of the first call to her supervisor via voice mail. She was not asked to go into detail in her evidence regarding these calls so we do not know anything more in relation to them. On September 22 the grievor stated she was in bed asleep when the call came at 9:16 a.m. She testified it was a Saturday morning but the calendar shows it to have been a Sunday. In any event, it was probably Saturday because it involved a teacher trying to access a locked building to teach a class. In any event, nothing[ turns on whether it -6- ~vas a Saturday or a Sunday. A teacher had appeared on campus to teach a class. The building ~vas locked. The teacher went across the street to the police station to seek assistance. The police telephoned the grievor and explained the situation. The grievor informed the police officer she ~vould attempt to contact the commissionaire perfon/%ing guard duties and ~vould call the police back. The grievor attempted to contact the guard on his desk phone and on his cell phone but without success. She phoned the police back to say she ~vas having dif~culties locating the guard but would continue trying and call back again later. After approximately l0 minutes she successfully contacted the guard by phone. He had been on his rounds and apparently the guard had been in one of the "dead zones" and had not heard her calls. The grievor explained the situation, requested the guard unlock the door ~vhereupon she phoned the police to inform the teacher ~rhat she had done. As a result, security guards no longer lock the relevant doors ~vhen classes are scheduled on ~veekends. There are a number of further examples of phone calls to the grievor after September 22 which are of a similar nature (ex. 6). iV~r. Blayne 1V~ackey, director of physical resources, supervises the grievor and the other two coordinators located at Core,vail and Kingston. He testified there had been a number of questions by staff and the union concerning the consistency in the manner ~vith which the employer_ treated situations involving call backs; after hour phone calls to or from one's home; ho~r reporting of overtime/lieu time was to be handled as well as the method of recording same. VVhen he met with his staff concerning changes from 35 to 40 hours work per ~veek these topics ~vere discussed. He decided, with advice from -7- Human Resources, to set down in writing his expectations in the form of a letter. The following letter addressed to the grievor was likewise sent to the other two coordinators and reads (ex. 4): September 18, 2002 Beth McLean 1300 Borden Crescent Brockville, Ontario K6V 5X5 Dear Beth: This letter is to confirm that, in accordance with Article 6.1.2.1 of the Support Staff Collective Agreement, you agreed to increase your normal hours per week from 35 to 40. Effective August 1, 2002, your normal work week consists of 40 hours per week, normally scheduled from 8:00am to 5:00pm from Monday to Friday. I would also like to outline my expectations of you regarding "Call Back" (Article 6.4 of the Collective Agreement), after hours phone calls to or from your home, and overtime/lieu time reporting. Call Back (Article 6.4 of the Support Staff Collective Agreement) Where you are required to return to the workplace after you have completed your regularly scheduled hours of work, you will be compensated for either the actual number of hours you were required to remain on the work site, or a minimum of 4 hours, whichever is greater. This time should be reported as "call back". After Hours Phone Calls to or from Your Home Where you receive a phone call at your home that requires your attention to a workplace related issue, _but you are not required to return to the workplace, you will be compensated for the actual number of hours you were required to commit to the issue. Tllis time should be reported as "overtime". Reportinq Overtime/Lieu Time It is my expectation that you report hours over and above your normal 40- hour workweek to me in a regular and timely fashion. If you fall to do so, I will not consider the work to be authorized over-time and you will not be compensated for it. Overtime and lieu time are to be reported to me by timesheet submitted on a bi-weekly basis, due on each pay date. The time reported should include all hours worked over and above your normal workweek in the two-week period ending on the pay date. You are to mark the timesheet clearly indicating whether you want the time to be treated as overtime or lieu time. For time marked overtime, you will receive compensation at time and one-half your regular hourly rate. For hours marked lieu time, you will receive paid time off calculated at time and one- half the hours worked. This time off will be scheduled in accordance with Article 6.2.4, Payment/Lieu Time, of the Support Staff Collective Agreement. -8- If you have any questions or require further clarification, please do not hesitate to contact me. Prior to September 18, 2002 the employees had reported their work performed outside regular hours directly to Payroll. However, as stated earlier, a problem arose on the Cornwall campus which prompted Mr. Mackey to become more actively involved. This new system as outlined in his September 18 letter required employees to record and report their times directly to Mr. Mackey in a regular and timely fashion. By this he explained he meant reporting would henceforth be on a bi-weeldy basis f~iliug which employees would not be compensated. He also testified he explained to his staff he wanted to be fair and reasonable such as in a case where a phone call lasted between approximately five and ten minutes, they should submit one-half hour on their form but if they spent one hour on the phone then that was what he expected them to record. Mr. Mackey stated employees were not entitled to the four hour minimum call back unless they physically returned to the campus. It is agreed the grievor is neither on standby nor on call and does not receive any compensation for being available during non-regular working hours. It is further agreed that if the grievor happens to be unavailable when called the caller simply goes to the next name on the list. There are no consequences for being unavailable. The grievor, however, makes a point to inform her supervisor if she should leave the area for an extended period during which she is not available. -9- UNION SUBMISSIONS The grievor has been delegated a responsible function during non-regular hours of work. She is the #1 contact on a list that has been created by Mr. Mackey. It is the employer's system which establishes an after-hour presence on the campus. The grievor is given a wide discretion. She decides if it is necessary to return to the campus or deal with the matter over the phone. That is, she is given the authority and discretion to handle a call as her judgement dictates. In assigning this responsibility to the grievor, the employer relies on her experience and expertise with minimal supervision. According to Mr. Mackey there are approximately two or three calls a month. A number of cases have considered the issue of "call backs" without any clear consensus emerging. However, a few principles have been established. One, call-back premiums are unconnected to the actual work performed. Instead, such premiums are an entitlement issue. Two, compensation of four hours overtime pay as a minimum might result in an employee being greatly over paid if, once recalled, there is no work to be performed. However, it is not the work that is or is not performed that is the consideration. Rather, it is the inconvenience to which the employee is put by requiring him to interrupt his f~ee time. Three, call backs are not to be confused with the requirement to carry a pager for which an employee is paid a "standby" or an "on-call" premium. Four, "call backs" are not to be further confused with "work at home" arrangements where the employee is scheduled to work at home rather than at the workplace. We are not discussing scheduled work at home situations. They are irrelevant to our situation. - 10- The union relied on several decisions in support of the principles enunciated above. These include Ontario Public Service Employees Union and ,41gonquin College, unreported, R.O. MacDowell, October 7, 2002; Ontario Public Service Employees Union (Ron EllioO and Ministry of Labour, Felicity Briggs, November 10, 1999; Greater Vancouver Regional District and Greater Vancouver Regional District Employees' Union, Stephen Kelleher, March 8, 2002; OPSEU (Delaquis) and Ministry of the Environment, S. Tacon, November 15, 1993; Re Treasury Board (Transport Canada) andHeath (1994), 43 L.A.C. (4th) 346 (Turner); The Nova Scotia Government Employee's Union and The Department of Human Resources, November 9, 1994, Bruce Archibald; Re The Queen in Right of Manitoba and l~lanitoba Government Employees' ~lssociation (1987), 28 L.A.C. (3d)241 (Freedman); OPSEU (Mitchell) and Ministry of Labour, G. Chamey, November 29, 1994; and OPSEU (Stecko) and Ministry of Revenue, J. Devlln, June 2, 1993. The union seeks to have the grievance succeed and that the Board remain seized of its jurisdiction. EMPLOYER SUBMISSIONS The issue before this Board is whether the work performed is overtime work or a call back situation. The employer submits it is the former. That is, there is a job of work that requires doing. That job of work is outside the grievor's normal work hours. It attracts payment for the work performed on behalf of the employer. It is overtime work. The employer acknowledges that arbitrators have adopted a wide variety of approaches in attempting to align the language in a collective agreement with their own -11- sociological or psychological points of view of an employer's intrusion into an employee's home life. To a degree, all work performed impacts on an employee's life whether it is scheduled overtime; either before or after a regular shift of work. But in this collective agreement and in the cases cited by the union one can attract a premium pay or a minimum guarantee for work for what can be a very short period of time. According to the union it would apply whether the call was two minutes or three hours worth of work which was required to be performed at home. Some arbitrators have concluded it seems unreasonable to conclude the parties intended that a 10-minute phone call at home should be compensated for four hours at premium rates while two extra hours worked at the end of the shift attracts only two hours premiurn pay. It is true there is a penalty built into a "call back", or a "call in", or "call out" (depending on the wording in any collective agreement) but that simply requires the employer to carefully consider its options before deciding to have the employee return to work. But this is not new. Whether one calls it the "extra trip theory" or the "back to work theory" the interruption to the employee's private time has been difficult in arriving at a proper determination over how that employee was to be compensated. The theory is based on the fact when an employee is required to show up for work outside regular work hours it causes a substantial disruption and inconvenience to the employee. Arbitrators are divided, however, over the call at home theory. Some take the view that having to take a 10-rninute phone call at home, give the required information, and return to what s/he had been doing is s~fficiently disruptive to activate the call back provision in the collective agreement. Other arbitrators have stuck to a more traditional - 12 - approach which goes back to the origin of the call back genesis. That is, call backs are disruptive but answering the phone as described above does not attract the call back provisions and accordingly call back does not apply. The employer submits the Board ought to adopt the employer approach to the problem. That is, in instances where there is no need to retum to the workplace and the phone call requires less than half an hour to deal with the problem, the employee be compensated at the overtime rate for one-half hour. When the phone call lasts more than one-half hour then the employee be paid at the overtime rate for the actual amount of time taken to resolve the problem. The grievor was properly compensated for the work she performed on September 3. As an aside, the Board was not informed as to the disposition of the overtime performed on September 22 but assumes the employer is prepared to compensate the grievor for her work based on one hour at the overtime rate. In any event, the employer requests the grievance be dismissed. In support of its position the employer relies on Re International Molders & Allied Workers Union, Local 49, and Webste~ Manufacturing (London) Ltd. (1971), 23 L.A.C. 37 (Weiler); Re Leco Industries Ltd. and Oil, Chemical and Atomic Workers International Union, Local 9-819 (1980), 26 L.A.C. (2d) 80 (Brunner); and Re Assiniboine Regional Health Authority and Manitoba Nurses' Union (2003), 115 L.A.C. (4th) 183 (Jamieson). - 13- DECISION The problem in determining the amount of compensation an employee is entitled to be paid when contacted at home during off-duty hours with a request to perform work and does perform the requested work has not been consistently applied by arbitrators over the years. We understand the issue may have had its beginning in a scenario whereby the employer needed the services of more employees than were currently at work to meet a sudden demand for extra product. They resolved this dilemma by contacting employees at home and paying a premium to any employee who was wglir~g to return and who did in fact retum to work. The premium eventually agreed upon was usually a minimum of four hotLrs pay at a premium rate, usually time and one-half. This minimum premium was paid regardless whether the employee worked 'fifteen minutes or four hours. By 1971 there had been a number of arbitration decisions on the meaning of "call back"; "call in"; and "call back to work", to name a few. In the ~F¢/~stcr decision the Board commented at p. 40 as follows: In the absence of an explicit definition of a call-in or call-back, we would accept the interpretation in the first group of cases of the objectives of such a guaranteed minimum, and agree that the provision should be applied in this light. What the provision does is to guarantee an employee a specified amount of minimum earnings in certain overtime situations, whether the company has enough work for this purpose or not. The rec~son why the parties negotiate this minimum is the recognition of the fact that being required to leave home and go to work usually involves significant disruption and expense for an employee and it is only fair that he should be guaranteed adequate compensation .... [Emphasis in original.] - 14- By 1980 employees were being required to carry pagers who were on call duty. This is what occurred in the Stecko case, supra, where paged employees were required to respond within one-half hour by telephone. In this case the employee was paged while shopping. He was employed as a fuel and tobacco tax inspector. He returned home to retrieve his manuals and spent 15 minutes on the phone and resolved the matter over the phone. He received one-half hour overtime but demanded call back pay. The decision is short and does not contain the pertinent portions of the collective agreement but the following comments by Arbitrator Devlin are enlightening: It is apparent, therefore, that the parties have distinguished between circumstances in which an employee on-call is required to return to the workplace and those in which the work performed does not involve recall to the workplace. It is only in the former case that the call back premium is payable and this, in my view, is consistent with the jurisprudence of this Board which provides that the call back premium is intended to compensate an employee for the expense and inconvenience of being required to return to the workplace outside his regular hours. But changes were occurring. With the increasing use of computers it soon became apparent that many tasks no longer required employees to appear at the office. The work could be performed at home. This opened a myriad of opportunities for both pa_~ies. Employees could integrate their work functions with home responsibilities. The employer was able to maintain its control over the performance of the duties by reviewing the time required to have the work performed versus the actual time an employee took to produce and submit the end product. The employee could perform the assigned work within the allotted time requirements demanded by the employer but with a measured degree of flexibility not otherwise permitted if required to attend at the workplace. It has become obvious through trial and error that employees now work at -15- home due to the available technology with which both parties have become comfortable. Indeed, this practice has become sufficiently prevalent that the parties have addressed it in their collective agreements (see Articles 6.5 and 6.8 reproduced above). Unfortunately, the parties have not seen the need to address the situation that exists before us. At first blush one naturally asks why have they not done so. Upon a moment's reflection the answer soon becomes obvious. This issue involves one employee per campus, at least at the three St. Lawrence College campuses. Thus, because of the very few employees involved it would not be expected to become a strike issue in the overall scheme of negotiating new collective agreements. Call backs and assigned work at home, on the other hand, would likely involve a Sl~cient number of employees in the bargaining unit to require a measure of attention and devotion being given by the bargainin9 committee. Accordingly, the Board is confronted with determining this issue which has been squarely placed before it. There is no issue over the Board's jurisdiction to decide this matter. The question to be determined is what compensation is the grievor entitled to when she is not required to return to the workplace but resolves the problem over the telephone. The employer asserts her entitlement is based on overtime pay for the time required to perform the job of work. This is reflected in Mr. Mackey's September 18, 2002 letter reproduced above which we repeat in part here as follows: - 16- After Hours Phone Calls to or from Your Home Where you receive a phone call at your home that requires your attention to a workplace related issue, but you are not required to return to the workplace, you will be compensated for the ac~uai number of hours you were requked to commit to the issue. This time should be reported as "overtime". Mr. Mackey modified his stated position somewhat during his evidence in that he stated any phone calls of less than one-half hour should be claimed for no less than the half hour at overtime rates. Counsel for the employer pursued the same theme in her submissions. Basically, the employer's position is any phone calls received at home that do not require a return to the workplace is considered overtime work without regard to call-backs as stipulated in art. 6.4. The collective agreement addresses overtime which is likewise contained in art. 6. Article 6.2 states the following: 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 (71/4), seven and one-half (7¥2) or eight (8) for the employees concemed; 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 (361/4), thirty-seven and one-half (371/2) or forty (40) hours per week as may be designated by the College for the employees concemed; 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 concemed. -17- Employees engaged in continuous operations or on special shifts excluded from Article 6.1.1 shall nevertheless be entitled to payment at the overtime rate of double the employee's hourly rate for all authorized work performed on what amounts to any second day of rest in their schedule provided they have completed their regularly scheduled days of work and performed work on what amounts to any first day of rest in their schedule. Employees who have completed their regularly scheduled days of work but have not performed work on what amounts to any first day of rest in their schedule shall receive time and one-half their hourly rate for authorized work performed on what amounts to any second day of rest in their schedule. 6.2.3 Overtime Pay - No Pyramiding There shall be no duplication or pyramiding of overtime payment nor shall the same hours worked be counted as part of the normal work week and also as hours for which an overtime premium is payable. 6.2.4 Payment/Lieu Time Where an employee has worked and accumulated authorized overtime under Article 6 (except overtime hours performed on a holiday defined in Article 10) such employee shall have the option of electing payment at the applicable overtime rate or time off equivalent to the applicable overtime rate. Where the employee elects time off at the applicable overtime rate, such time off must be taken within sixty (60) calendar days of the occurrence of the overtime (unless extended by agreement of the College and the employee) at a time determined by the College and satisfactory to the employee. Where time off in lieu is not taken on the foregoing basis, payment shall be made in accordance with the applicable overtime rate. 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 Colleges agree to attempt to distribute available overtime work as equitably as practicable amongst qualified employees in the work groups in which overtime work is required. Whether or not advance notice of required overtime has been given, the College shall take into consideration the legitimate requests of employees to be excused where the performance of overtime by such employees would cause undue hardship or serious inconvenience. Employees who have been excused on this basis shall be deemed to have worked such overtime for the purposes of considering equitable distribution. Where an employee claims improper distribution of overtime under these provisions and such claim is either agreed to or determined to be valid, the College's obligation shall be limited to offering such employee the nex~ opportunity to perform scheduled overtime work in his/her work group that he/she is qualified and willing to perform. - 18- Article 6.2.1 could arguably be said to apply to the instant situation which the employer would have this Board adopt. However, 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. This is quite different from the instant situation in that there has been no prearranged commitment by the grievor to perform any specific job of work. She is at liberty to do anything she wishes outride 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 - 19- 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. In our respectful opinion the overtime article contained in art. 6 does not encompass the instant situation and does not support the employer's position. We turn next to art. 6.4 which the union asserts captures the instant situation. Before reviewing art. 6.4 we recognize there are several factors associated with the work required ~o_ be_peffonnad b_y_the grie~or, when called on the_telephone ~'hese include J:he___ following. The work required to be performed is outside the regularly scheduled hours of work; the work has been delegated to the grievor to be performed; there are no standby or on-call or any other premiums being paid to the grievor for her being available to perform the work; there are no consequences to the grievor for not being available when calls come to her phone number. If she is unavailable the caller simply goes to the next name on the list; the grievor has been delegated the authority to determine whether she attends the Workplace or whether she handles the problem over the telephone; there are no provisions in the collective agreement regarding the providing of services over the telephone; there is no dispute that if she decides it is necessary to return to the workplace to perform the required duties she receives the minimum compensation stipulated in art. 6.4. Mr. Mackey informed the Board that the average number of phone calls a month is between two and three. This is borne out by - 20 - a quick perusal of ex. 6 which reveals there were four calls in December 2002, three in February 2003, and one in March. But the question remains is art. 6.4 capable of being applied to situations which do not require the grievor's retum to the campus? We believe so. The article reads in part that, "Where an employee ... is subsequently called back before the commencement of his/her next regularly scheduled shift ..." she shall receive payment "with a minimum guarantee" as stipulated. There is no doubt the grievor has been "called back" to perform an obligation on behalf of the employer. We do not think it is necessary to add words like "call back to duty" or "call back to the campus" or "call back to the workplace" for the grievance to succeed. That would be playing on words which we believe is not helpful to anyone. In attempting to interpret art. 6.4 we ought not to construe it too narrowly so as to require the grievor to return to the workplace each time for it to apply, nor too liberally to have it apply each and every time she receives a phone call at home. The Board is aware that the grievor is recognized by the employer as a dedicated and highly valued employee. She performs her work exceptionally well and is no doubt one of the many reasons she has been entrusted to the position she holds. But putting the grievor aside for a moment and looking at a purely hypothetical situation one might visualize a scene where an employer might entertain certain misgivings or concerns about the possibility of some mischief being available to an employee in the grievor's positien which it would hope to avoid. As an example, let us assume Employee A holding the grievor's position receives a call at home outside her regular scheduled hours -21 - of work. She is relaxing and reading a book. She quickly determines the problem is a minor one which can be dealt with summarily over the telephone. Let us assume the employer's position of paying her the one-half hour overtime is adopted by this Board. Employee A is, of course, aware of the payment arrangements. Employee A knows if she returns to the campus she will receive four hours at 1.5x her regular rate of pay. If she does not return to campus she will receive half an hour overtime pay. She decides to return to the campus when a phone call was all that was required. Her decision to return to the campus would be an abuse in that type of situation. The other type of situation may involve one similar to the grievor's unsuccessful attempt to locate a guard to unlock one of the doors for an impending class session. While she persevered and was able to resolve the matter over the phone, she could not have been criticized had she decided to return to the campus. The crux of the matter is one of exercising one's judgement properly. The employer has entrusted this task to the grievor by delegating the responsibility to her. It is not a case of having supervisory personnel in the plant deciding he/she needs another person to perform work at a given moment and exercising his/her discretion to call an employee to return to the plant. The supervisory personnel has already made the decision to place that discretion with the grievor. She must use that discretion honestly and exercise good judgement in the best interests of the employer. Should she abuse the discretion that has been delegated to her corrective measures are available to the employer. In our view, until the parties determine otherwise by mutual agreement, art. 6.4 is sufficiently broad to capture the work required to be performed by the grievor. - 22 - The grievor is entitled to receive the four hour minimum guarantee provided in art. 6.4 whenever she is required to perform work-related duties over the phone on behalf of the emploYer. At times the grievor may be grossly overpaid for a minimal period of time required to be spent on a problem. However, she is the person delegated to resolve such problems. The employer needs to have the presence of a "troubleshooter" to resolve such problems. The grievor has willingly undertaken the responsibilities to carry out the necessary functions to that end. In our view, art. 6.4 is sufficiently broad to cover the instant situation. Before leaving the matter the Board was informed there had been two phone calls on September 3 within a 25-minute period raising some doubt whether this might mean the equivalent of two separate "call backs" on that date. That issue was not pursued because the union informed the employer it was not making such a demand. It is therefore unnecessary to comment further on the point except the parties may take some worthwhile direction f~om the Manitol~a decision, supra, especially at p. 244. The grievance succeeds. The grievor is to be compensated for the work she performed on September 3 and 22, 2002 pursuant to art. 6.4. To be clear, we understand the grievor was compensated for one hour at the applicable overtime rate for work performed on September 3, 2002. She is to be compensated for an additional three hours at the appropriate overtime rate for that date. She is also to be compensated for work performed on September 22, 2002 for four hours at the applicable overtime rate. The Board will retain its jurisdiction to assist the parties in implementing this decision should it become necessary. - 23 - It is so ordered. Dated at Kingston, Ontario, this 7th day of June, 2004. C. Gordon Simmons Chairperson "Dissent Attached" I concur/dissent Ann Burke Employer Nominee Sherril Murray I concur/dissent Sherril Murray Union Nominee Dissent A review of the evidence indicates that the work in issue in this case involved telephone calls lasting from 6minutes to 25 minutes. From time to time, an issue arises requiring several phone calls falling within three quarters of an hour to a two hour period. -r'he calls are answered via cellular telephone which the grievor carries and is turned on 24 hours per day 7 days per week. In the case of a number of calls spanning an hour or more, there is nothing to prevent the grievor from continuing with the personal activities of the day or night. In addition, there is nothing to prevent the employee from turning off the cellular phone at given times such as when thoy arc in church. The grievor acknowledges that her responsibility with respect to these calls is included in the duties set out in her PDF. She aisc acknowledges that they are taken into account in determining her rate of pay. Her PDF indicates that she is an atypical technologist rated at payband 12. Schedule "E" of the collective agreement indicates that her hourly wage rate ion the fall of 2002 would be $27.79 per houl. The highest huur'ly rate, at that I. ime, l'or the highest payband (15) was $35.22. The lowest hourly rate for the lowest payband was $12.73, at that time. it is clear that the grievor relatively highly paid employee within the support, staff bargaining unit and that, to some extent, this is as a result of the requirement to carry a cellular phone and answer questions the nature of which are the same as those she answers during her normal hours of work. It is also important to note that the grievor has complete discretion to decide whether a call requires her presence on campus or can be resolved by phone by providing the necessary information or referring the oalfer to another individual. She also has discretion to answer calls or not. She readily agreed that there are no negative consequences if she chooses not to answer calls and that although her name appears first on lists of people who can be contacted outside regular hours, she is just one of many. While there is no doubt or disagreement in the evidence that hers is a very responsible pos~bon, ~t ~s also clear that the level of responsibility sl~e bears is fully taken into account in establishing her rate of pay. It is in these circumstances that we are asked to determine whether the parties to this collective agreement contemplated that she would re. calve 4. hours pay at time and one half ($27.79 X 1.5 X 4 = $166.74) for a 6 minute phone call or she should receive the regular overtime rate of time and one half for the actual time spent answering the call. (The evidence makes it clear that the policy in issue would in fact compensate the employee in one half hour increments and tl~erefore the ~5 m~nute call would result in the payment of $20.84) 2 Under the terms of this collective agreement, the Union's position would result in an anomaly whereby an individual who is required to report for work two hours before their regular shift, they would be paid for 2 hours at time and one half while answering a 6 minute phone call would attract 4 hours pay at time and one half. In interpreting this agreement, we must give consideration to such results and it is not aufficient to say that, while our interpretation might lead to unreasonable results or leave the parties with the further dilemma of determining how the agreement shotJld be. applic, d who.re, there is a calf in the morning and another in the evening of the same day, involving a total of 20 minutes of work, we need not consider these questions because the Union is not taking that position in this case. We are being asked to interpret this collective agreement based on the language of the whole agreement and with a view to what the parties must have intended, irrespective of whether the Union Is pressing that point or not. The case law on point is divided on this issue however the traditional view is that these circumstances do not attract "call back" pay but rather simple overtime pay. Based on the evidence, there is little disruption to the griever's private life arising from the performance of these duties which is in no' way comparable to the effect of requiring an employee to physically return to work, after their regular hours, If regular overtime is payable, there is a premium being paid to the employee in recognition of the interruption of their private lives but dues no[ result in the kind of anomaly noted above nor the gross overpayment for performing their normal duties for brief periods of time outside their regular hours. In addition, the actual language of art. 6.2 does not require that overtime work be contiguous with the employee's regular hours of work. In addition, that provision clearly anticipates that overtime is only payable where certain minimums are exceeded. That is, overtime is payable for authorized work consisting of a minimum of 15 rninutes over the normal work day. This I would suggest is significant in determining ttlu parties intentions. I cannot agree that the hallmarks Of a "call back" are present here mc. rely because the work is done outside regular work hours, so is overtime. Though the work has clearly been delegated to the .qrievor, this was factored into the determination of her classification and hourly rate when her PDF was developed. That being the case, one would not expect a standby or on call premium to be payable in addition to the higher rate of pay established by the classification In the PDF. The term "call back" clearly anticipates exactly what it says. The erf~ployee musl be called back to work. I bellow that it strain~ the plain meaning of "call back" beyond reason to find that it includes circumstances where the employee's private life is disrupted ¢or 6 minutes when the wnrk can be performed anywhere, at the employee's discretion and convenience. I do not agree with the majority's conclusion that the parties to this collective agreement have no[ addressed this issue in collective bargaining. However, if 3 this were the case or if there are two provisions which might potentially be applied, the normal rules of interpretation require us to consider what the parties intentions would be in these circumstances. If this is the proper test, I cannot see that the employer would ever have intended to such an impractical and unfair result. I also believe that interpreting art. 6.4 so as to include the work in question goe~ well beyond interpreting tile language "liberally", particularly where the plain language of art 6.2 can be found to apply without the necessity of a "liberal" interpretation. When one is aeked to interpret the language of a collective agreement in circumstances such as these, one should reject an interpretation which results in the gross overpayment of work for a minimal period of time. Ann E. Burke