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HomeMy WebLinkAbout1989-0088.Pires.90-10-31 ,', ' ~' "'~'< ". ONTARIO EMPLOY~.S DE LA COURONNE · ..~"-, ~ .~' ~"i CROWN EMPLOYEES DEL'ONTA, RtO · :' :~~ .7 ..., .,.~.. GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~$0 DUNDAS STREET WEST, SUITE 2t00, TORONTO, ONTARIO. M5G ?ZB TELEPHONE/T~L~_PHONE: ~4 ~6) 326- 180, RUE DUNDAS OUEST, aUREAU 2~, TO~ONTO [ONTARIO), MSG lZ8 FACSJMILE/T~L~COPIE : (4 ~6) 326-~3~ oo. s8/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU.(Pires) Grievor - and - The Crown in Right of Ontario (~inistry o= ~evenue) Employer BEFORE= W. Kaplan Vice-Chairperson M. Lyons Member E. O'Toole Member FOR THE M. Wright UNIO___~N Counsel Cavaiiuzzo, ~ayes & Shiiton Barristers & Solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING June 1, 1993· Introduction On. October 27, 1986, John Pires, a Tax Audito~ 1. working for the Ministry of Revenue, filed a grievance claiming that he was improperly classified. By way of remedy,' . the grievor sought reclassification as a Financial Officer 4, On March 15, 1989, the grievor filed another grievance claiming that he was improperlY classified as a Tax Auditor 1. By way of remedy for this grievance, the grievor sought reclassification.as a Senior Auditor. On. March ?_8, 1989, Mr. Larry Wilson, the Supervisor of the Tax Ret~urn Centre, wrote the grievor as follows: Receipt is acknowledged by Branch Management of your grievance dated March 15, 1989 in which you are seeking reclassification to the senior tax auditor position. As you are aware, you previously submitted a grievance regarding classification which is still unsettled. Therefore; submission of this grievance would appear to be unnecessary, The 1986 grievance was resolved in November 1990 when the Ministry and OPSEU signed an agreement- settling a number of outstanding grievances, including the grievor's October 1986 classification grievance' The salient parts of this settlement are as follows: The parties agree, on a without prejudice or precedent basis, to the following terms as full and final settlement of the above captioned grievances. The gi;ievors and O.P.S.E.U. agree to immediately withdraw the above noted grievances. I The parties agree that this Memorandum of .Settlement shall be issued as an Order of the Grievance Settlement Board. The Memorandum of Settlement was issue'd as an order of the Board. Insofar as the grievor is concerned, the settlement provides for his reclassification as a. Financial Officer.1 Atypical. The grievor received a retroactive salary increase effective October 1986. In the meantime, the grievor had, on April 30, 1989, retired from the public service. As provided for by the settlement, he received his new classification and retroactive compensation up until the date of his ~retirement. However, his 1989 grievance, filed several weeks before his' retirement, remained outstanding and proceeded to a hearing before the Board. The first scheduled date was adjourned sine die pending tt~e-. resolution of an unrelated grievance which had also proceeded to a hearing. ~ On JUne 1, 1993, the grievor's Classification case came before the Board, and the employer raised a preliminary objection. It was not necessary to hear any evidence on this objection, which acCOrdingly proceeded directly to argument. At the request of the parties, the Board adjourned following argument to consider their submissions, and this award deals solely with the employer's procedural objection. ·' Employer Argument Employer counsel argued that the matter of the grievor's classification was settled, and accordingly, that there was no issue in dispute between the parties to be determined by the Board. Counsel noted that the same issue. 'was raised in both of the grievor's grievances - his classification, and that this issue was res°lved by the November 1990 settlement. In counsel's submission, it would be perfectly proper for the grievor to file a second grievance on an unrelated matter, and have that grievance proceed. to a hearing before the Board. It may also be proper for the grievor to file another Classification grievance where he alleged that there, had' been a material change in circumstances since the filing and 'settlement of the first grievance. In that situation,' counsel a~gued, it' would be appropriate for the Board to take jurisdiction because the two grievances would arguably be about different issues. In such a circumstance, the settlement of the first grievance would not be a bar to the adjudication of the second. C°unsel argued that the instant case was different, and the reason is because the settlement'took place after both the first and second grievances were filed. Counsel referred to Neube~t 475/89 (Fraser), where the Board held: We therefore conclude that a settlement of a classification grievance...fully takes into account the fact situation as known to both parties at the time of' settlement, as that' is patently the intent of the parties as illustrated by the terms and nature of the settlement. Furthermore, it is trite'Jaw that such settlement estops either party from re-litigating the matter based on the known and relevant facts at the relevant time... (at 9). It 'was obvious, counsel argued, that when the parties entered into the full and final settlement of the grievor's October 22, 1986 classification ~]rievance in November 1990, they did so with complete knowledge of alt the factual circumstances relating to 'the grievor's position until the point of settlement, and as this settlement post-dated the grievor's retirement from the pubiic service, no new factual circumstances could .be said to exist in this case with the effect of distinguishing the grievor's first c~assification grievance from his second. This was not, simply put, a' case where the grievor filed a classification grievance, settled it, and subsequently alleged that there were further changes in his position affecting his classification leading the grievor to file another classification grievance. Rather, in this case, the parties settled the matter in dispute, namely the grievor's appropriate classification. Accordingly, on this .basis, counsel urged the Board to -dismiss the March 1989 grievance, and in further support of this submission, counsel referred to the. Anderson et al 346/89 (Keller) award which, among other things, canvasses relevant case law concerning the applicability of the principle of res judicata to laboUr arbitration. While the April 1989 grievance sought a different remedy than-the October '1986 grievance, the statement of grievance in both cases was identical, and, counsel argued, the substance of both claims was' exactly the same. As the first was settled after the second was flled,'both res iudicata .and estoppel principles arguably applied. Counsel noted in this regard that the settlement of the October 1986 grievance was issued, as agreed upon by the 'parties, as an order of this Board. (See also Skates et al 1'177/91 (Barrett) and McRae 0533/89 (Wilson).) ~n conclusion, and in anticipation of union counsel's argument, counsel again · referred the Board to the Neubert decision, and to the extended discussion found therein on the meaning of various terms such as "without prejudice or precedent" commonly found in labour relations settlements. The Board in Neubert notes that the phrase "without precedent" merely means "that the settlement cannot be used as a persuasive example for any future cases that arise, and does not have any relevance to the issues before us" (at 10). The Board in that case determined that the 'term "without prejudice" must be 'interpreted 'in ~he context of a' voluntarily entered full and complete settlement. The Board found," and we are in agreement with this'finding, that the phrase "without prejudice", is intended to be read as "without prejudice to any other matter". The, phrase therefore excludes the instant matter resolved by the- settlement, and cannot be used as a legal tool to 're-litigate the same matter between the same parties, based on the same .facts. This is consistent with the purpose of achieving finality, and with the need to give · meaning to the settlement (at 11-12). Accordingly, counsel argued that the settlement should be upheld and the 'grievance dismissed.` Union Argument Counsel began his submissions .with the 'observation. that the general rule was clear: an arbitration board should decline jurisdiction over a ~rievance that has been settled, by reason of the application of principles of res judicata or estoppel. In. counsel's view, however, this general principle had no applicability in the instant case because the March 1989 grievance was not the same as the October 1986 grievance, and counsel pointed out that. while the statement of grievance in each case was identic'al,, the remedy · requested was not. In his October 1'986 grievance, the grievor sought reclassification as a Financial Officer 4. That grievance was settled by the November 1990 Memorandum of Settlement. However, in March 1989, the grievor sought reclassification a's a Senior Auditor,~and that grievance, counsel argue~l, was never settled, tt was, in counsel's view, a different grievance r~ising on its face a different factual matter ~n dispute. These differences, counse~ suggested, demonstrated that the two grievances were not the same, and that being, the case, the settlement of one of them should have no effect on the arbitrability of the,other one. Moreover, in counsel's submission, there was no evidence in she Memorandum of Settlement indicating that that settlement was intended to cover, the grievor's second grievance. If the employer had Wished to settle that grievance, it should have tabled it during the course of the settlement discussions, and specificaJly provided for .its settlement in the iv]emorandum of Settlement.. Counsel pointed to the Memorandum of Settlement, and argued that it was without prejudice to ali of the grievor's. other rights, including his right' to proceed with his outstanding grievance, a grievance, counsel pointed out, that the employer was fully aware of .at the time it entered into the Memorahdum of Settlement disposing of the October 1986 grievance. Counsel noted that the' Memorandum of Settlement required the union and various grievors to withdraw certain specified outstanding grievances, and that the March 1989 grievanCe was not one of them. Counsel also argued that there was no way of knowing if the grievor would have agreed to the Memorandum of Settlement if he had been advised that it. also disposed . of his March 1989 grievance. There was, in counsel's view, an obligation on the employer to advise the griev0r that it was taking that position with respect' to his second classification grievance, and as it had not done so it could hardly later claim that the settlement was also · intended to include it. Counsel referred to the Komendat et al 1246/90 (Dissanayake) award and to the observations found therein. The Board in that case notes that classification grievances are, by' their very nature, continuing grievances, and that it "cannot be said, that the settlement of~ a continuing grievance Der se is a representation that the grievors will not grieve in the future under any circumstances" (at 5). The Board goes on to say in the Komendat et al case that the statutory rights given .grievors Under section 18(2)(a) of the Crown Employees' Collective Bargaining Act ,should "only be denied in extreme circumstances. We would have been .prepared to bar the grievors if either the grievors could be said to be la) estopped or lb) engaged in an abuse of process'' (at 6). Counsel argued that the grievor in this case was not. estopped, nor was there any evidence of abuse of process. Accordingly, he asked the Board to take jurisdiction.over this case. Employer Reply In reply, counsel submitted that a Memorandum of Settlement could not bar the submission of a classification 9rievance provided that there was a material change in circumstances followin9 the entering into of the Memorandum of Settlement. Such a'change of Circumstances was not present in this case, and was, counsel argued, impossible given the fact that the settlement of the first grievance was entered into~after the second one was filed, and that the parties settled the grievor's classification -dispute and that this settlement covered the grievor's entire period of employment subsequent to his first 9rievance. Counsel also suggested that the fact that the grievor seeks' a 'different remedy in his second grievance should .not be determinative of the employer'S preliminary objection because the Board should only consider remedy if it found that there was a new issue in dispute. Counsel reiterated his argument that.the issue in dispute in both grievances was exactly the same. Counsel also pointed out that the evidence established that the employer' was aware of both grievances at the time it settfed the first grievance, and' moreover, that it communicated to the grievor' its view that both grievances were exactly the same. In counsel's view,' where' the employer specifically notified a grievor that it had determined that two outstanding grievances were identical, it was'incumbent on the grievor to specifically reserve his right to proceed with the second grievance independent of the settlement of the first. The. onus, counsel argued, was on the employee, not the emplOyer, tn Counsel's view, the evidence indicated that both parties sought to resolve all matters in dispute relating to the grievor's classification when they entered into the November 1990 Memorandum of' Settlement. Decision Having carefully conSidered the arguments of the Parties, we have come to the conclusion that the employer's objection should be upheld, .and the grievance dismissed. ' The facts of this case clearly establish that while there were two outstanding grievances when the Memorandum.of Settlement was entered into, there was only one outstanding matter in dispute, and that matter was the grievor's classification. That one outstanding issue was specifically addressed in the November 1990 Memorandum of Settlement. In our view, there is no reason, in this case, to depart from the widely accepted labour relations principle that a settled, withdrawn or abandoned dispute cannot be the subject of a subsequent submission to arbitration. The resolution of disputes by consensual, settlements between the parties is encouraged in labour relations, and where the parties have reached a settlement during the course of the grievance and arbitration procedure, the. In this case, the November 1990 Mernorandum of Settlement disposed of both of the grievor's classification grievances in that both of these grievances raised exactly the same issue. We do not attach any significance to the .fact that the remedy sought in each grievance was different. It is the issue in dispute that matters, and when two grievances raise that same issue, the fact that they seek different remedies does not, in the circumstances of this case, distinguish one from the other. We note. also that in this case there, was no suggestion whatsoever that the gdevor's duties and responsibilities changed between the filing of his two grievances. Moreover, the'~lemorandum of Settlement provided for the grievor' to receive a new classification, and retroactive compensation, to the date of his retirement. Arguably, there is no period before us in which the grievor was improperly classified. It is also worth observing, although this is not a basis for our decision, that even assuming 'the objection were dismissed and the case proceeded on its merits, and, assuming ~na~ .... the§nevance ................. were ~ucc~u~,' ' ~'--u~ ~j~uvu,~: ........... wuu,u'~ only receive reclassification for a period'.beginning twenty days prior to the filing of his grievance until the date of his retirement - a period of a little over two months.- In conclusion, we find that the matter of the grievor's classification, was resolved by the M~morandum of Settlement entered into after the second grievance was' filed. Had it been otherwise, and had the grievor alleged some material change in his duties and responsibilities.at th'e date of has second grievance, we would have likely taken jurisdiction 'in this case. However, that is not so, and accordingly, the employer's Objection is upheld and the grievance is dismissedl · DATED at Toronto this 29r. hday of June 1993. William Kaplan ~Vice-Chairperson MemYber "~ M. O'Toole Member -~,, ONTARIO EMPLOYES DE LA COURONNE *~ CFlO WN EMPLOYEES DE L 'ONTA RIO ' GRIEVANCE C~OMMISSION DE SETTLEMENT REGLEMENT **'~ BOARD .DES GRIEFS t80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEP. HON~;/T£L~-PHONE I80, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8-BUREAU2100 (416) 598-0688 90/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Baker/Elliott) Grievor -. and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE: B. Kirkwood Vice-Chairperson J. McManus Member I. Cowan Member FOR THE I. Roland GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Sapin EMPLOYER Staff Relations Officer Ministry of Labour HEARING: April 11,1990 Page 2 ~'~ k DECISION The grievors, Ronald Elliott and Murray Baker, are Occupational Health and Safety Inspectors 2 which are Schedule 6 Employees under the Collective Agreement. They claim that they were improperly denied call back pay for the hours of work which Mr. Elllott performed on January 24, 1989 and January 25, 1989 and the work which Mr. Baker performed on February 7, 1989. On January 24, 1989, Ronald Elliott, was called by Charlie Leigh, the Regional Manager, after he had returned home from work, to attend at the Framm plant in Stratford which had been shut down by a stop work order from the Ministry of Labour. He was to inspect the plant to determine whether the stop order, could be removed. The grievor spent two hours travelling time to and from the company and one hour at the company. Ronald Etliott was called again by'Charlie Leigh at 2:00 a.m. at his home to reattend at Framm. The grievor spoke to the company and arrived there at approximately 5:50 a.m. He spent another two hours travelling and one hour at the plant. He returned home by 7:15 a.m. and went to work as he normally would for 8:30 a.m. Similarly, on February 7, 1989, the grievor, Murray Baker was called by the Ministry at 9:00 p.m., several hours after he had returned home from work, to attend at the Ford Motor Company in Talbotville to investigate a stop work order. He spent' an hour and a half in travel time and approximately three hours at the plant. In order for the stop order to be removed, the grievor made arrangements with an ergonomics consultant for a meeting for 8:00 a.m. on Page 3 February 8, 1989. He went to the meeting and then went to work at the office. Botk grievors were paid for their travel time pursuant to the collective agreement. Neither grievor was paid for the time spent at the companies. Initially Murray Baker did. not receive lieu time for the time that he spent at the company, but after he requested lieu time for a number of incidents, he received from his new supervisor. Ronald Elliott was not sure whether he had received lieu time for the time spent at Framm. The Ministry's counsel argued that the onus is on the uni6n to prove entitlement to the call back pay. He argued that there was no provision in tke collective agreement which provided that right. The Ministry's counsel argued that the nature of tke work schedules for Schedule 6 employees is different from the other employees who have' normal daily and Weekly hours of work. Article 13.1 and 13.2 provides overtime beyond the normal hours for employees other than Schedule 6 employees. Article 13.7.1~ and 13.7.2 provides 'the only overtime available for schedule 6 employees - either that of lieu time off for the work that they perform on their days off and overtime pay if they are involved in firefighting or related duties. The Ministry's counsel submitted that as article 13.7.1 is silent with respect to the time ~spent between Monday to Friday outside the employees normal working hours, there is no entitlement to ~his pay. The Union's counsel argued that Article 14 is available to all employees and does not exclude Schedule 6 Page 4 Employees. He argued that Article 14 stands by itself and is not contingent on Article 13 for its existence. It provides a special and distinct type of overtime from that covered in Article 13. He argued that call back pay was the cunly way in which these grievors could earn any additional money as they were precluded from earning overtime by article 13. The Union's counsel relied on Bell and The Crown R~ht of Ontario (Ministry of Community and Social Services) G.S.B. 116/78 (Swinton) and Re International Holders & Workers Un~on, toca] 49, and Webster ~anufact~ring ~ (1971) 23 L.A.C. 37 (Weiler) to indicate that the purpose of call back is to compensate the employee for the social disruption of having to attend work after leaving work, and to create a monetary factor to the management's decision to have the employee re-attend work. He argued that as these grievors were called back to work before their usual working hours, the purpose 6f the call back was applicable and the grievors were entitled to the call back pay. He argued that there was no basis for excluding these emp'loyees when they suffered the same inconvenience. The Union's counsel argued that "usual or normal working hours" were included within the meaning of the "next scheduled shift" as referred to in article 14.1. The relevant articles of the collective agreement are as follows: ARTICLE 7 - HOURS OF WORK 7.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one-quarter (361/4) hours per week and seven and one-quarter (71/4) hours per day. Page 5 7.2 SCHEDULE 4 and 4.7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day. 7.3 SCHEDULE 6' The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one-quarter (361/4) hours per week, -The other relevant articles are: ARTICLE i3 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 I/2) limes 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. 13.3.1. Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one quarter (71/4) hours or eight (8) hours as - . applicable, shall be paid at the overtime rate. 13.3.2 Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked. 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (71/4) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (11/2) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably - determine the time of the compensating leave. '13.5 Where there is a mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. 13.6 Compensating leave accumulated in a calendar year which is no.t · used before March 31 of the following year, shall be paid at the rate · it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level 13.7.1' Employees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off. Page 6 13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one-half (11/2) times the employee's basic hourly rate, 'to be calculated on the basis of thirty-six and one-quarter (361/4) hours per week, for all such work after eight (8) hours in a 24-hour period. ARTICLE 14 - CALL BACK 14.1 An employee who leaves his place of work and is subsequently 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 (11/2) times his basic hourly rate. ARTICLE 19 - HOLIDAY PAYMENT 19.6 Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 48 (Holidays) shall receive equivalent time off. The issue is whether or not the grievors as Schedule. 6 employees are entitled to call back pay under Article 14.1. Articles 7.1 and 7.2 provide the normal weekly and hourly hours of work for Schedule 3.0, 3.07 and 4.0 and'4.07 employees. These employees each have a specified number of daily hours of work after which they receive overtime payment, pursuant to 'Article 13 - Overtime' By contrast, article 7.3 which provides the hours Of work for Schedule 6 employees, provides only a minimum number of hours per week. There are no daily minimum hours or maximum hours to be worked. Page 7 The overtime provisions which speci.fically relate to Schedule 6 employees are articles 13.7.~ and 13.7.2 which provide equivalent time off for employees to work on a day off and a monetary payment should Schedule 6 employees be assigned to forest fire fightin~ or related duties. Article 19.06 which is referred to in Article 13.7.2 'relates to Holiday Pay. In addition, the Ministry has recognized that occasionally inspectors are required to work on unusual occurrences outside of normal business hours and it has applied a policy that allows the time that the inspectors spend at their work after returning home,, as time which is eligible for lieu time. Although the policy requires a request for the lieu time to be made before it is given, the department has not required advance notice on all occasions. The policy is however, discretionary. As the pol.icy is not part of the collective agreement the Ministry cannot be forced to gi~e the time off and as it is discretionary can be subject to different 'applications by different supervisors, in any event, although the Ministry has a policy of giving lieu time for work performed other than on the employee's day off, that does not create an- entitlement to convert the lieu time to call back time. Any such right must be found in the collective agreement. Call back pay is By its nature a 'form of overtime pay, as it is monetary compensation for the expense and inconvenience that an employee is put to by being required to work at a time outside of his regular hours of work. This purpose was articulated in Re I~%~rnational Molders and Allied Workers' Union l.oc~] 49 and Webster Manufacturing (l.ondon~ Ltd. 23 L.A.C. 37 (P.C. Weiler). Page 8 Call back pay is provided for in article 14.1. Article 14.1 stands on its own and sets out a minimum payment for call back. As the article refers to the generic "employee" it. is not limited to any specific type of' employee. Although Article 13 is titled "Overtime" it does not circumscribe all types of overtime for all employees, for example. Holiday Pay in article 19, and payments for on-call duty in article 16.3. By its existence it does not preclude the application of article 14.1. However, in order to obtain the benefits of article 14.1, the employee must meet the conditions set out in the article. Therefore, in order to receive entitlement to the pay the employee must (1) leave his place of work, (2) be subsequently called back to work, and (3) he must be called back to work prior to the starting time of his next scheduled shift. The grievors clearly met the first two criteria as they left their place of work and were called back to work. The issue however, is did they meet the third criteria, were they called back ~o work before their "next scheduled shift". We find that the nature of the grievors' work prevents the grievors from having a "next scheduled shift". As an Occupational Health & Safety Inspector, approximately 20 percent of the work falls outside the usual hours of 8:20 a.m. to 4:30 p.m. Sometimes there will be periods where there are greater demands for work outside the normal hours, and at other times there will be no demand for this work. There is no pattern to the times spent outside the usu'al hours. As the job requires the inspectors to attend to duties, such as investigating stop orders and investigating fatalities and injuries, which, by their very nature can occur at any time and not within any particular shift, these employees do not have a "next scheduled'shift" Page The Shorter Oxford English D~ctionary on Historical Principles, Oxford University Press 1973 defihes "shift" when applied to a working environment as: To cause (a set of workmen) to chahge places with another set. Also said of a gang of workmen: To replace (another gang or set') as a relief. The practice in industry, however, does not require twenty-four hour coverage as this definition would imply, but it does reflect a specified time of work which starts and ends on set times on a regular basis. This job has more flexibility than shift work. It has usual.working hours, but an employee may be late, or work at times other than at the usual hours. There is also the flexibility that the department has practised with the lieu time, although it is not a contractual right. In OPSEU(Krete) and The Crown ~n Right of Ontario CM~n~stry of T.abour) G.S.B.1055/88 (R.L: Verity) M~. Verity discussed the nature of the work schedules for an Occupational Health and Safety Officer. Mr. Verity stated at page 7: ... Article 14.1 contemplates an employee working.a scheduled shift, and that an employee has left his place of work and that he or she is called back to work prior to the next scheduled shift. In our view, Schedule 6 employees required to work a minimum of 36-1/4 hours per week are not shift workers in the traditional sense.· Article 7.3 makes no reference to the number of hours worked in a given day. Mr. Verity also pointed Out that Schedule 6 employees are not entitled to overtime pay or compensating leave under article 13.7.1, but are entitled to equivalent time off. Similarly they are not entitled to holiday pay Pag~ 10 under article 19.6, but are entitled to equivalent time off. He found that the sole exception where overtime pay is provided is found in article 13.7.2 Which is very specific as to its terms. The Krete (supra) decision is consistent with the OPS~U (Fawcett) and The Crown in R~ht of Ontario {Min~str~ of Transportation and Commun~c~ions) G.S.B. 275/82 (P.M. Draper) decision wherein Mr. Draper f6und that although travelling time was to be compensated, it was not overtime. In {Fawcett) (supra) both grievors were Schedule 6 employees and could be called upon to attend work at any time of day or night. When both were not in the field they worked at their office where each had daily working hours and they normally worked a five day week. Fawcett however, spent thirty percent o~ his time in the field for a five month period and 98 percent_d~ring the rest of the time in the field. Fawcett also received lieu time under 13.7.1 and 19.6. The Board found that Fawcett did not receive any overtime and that travelling time was not overtime. However, the Board gave travelling time because there was no exclusion of Schedule 6 employees from article 23 and there was a tacit understanding what the grievor's normal working hours were. Again the wording of the article in issue was different from the wording of the article before us. Article 23 refers to the time spent "outside of working hours" which is broader than the time spent outside "their next scheduled shift". The case before our board is also distinguishable from the case of OPSEU (Bell) and The C~Qwn in Right of Ontario (M~nistry of Communit~ and Social S~rv~ces) GoS.B. ~116/78 (Professor K. Swinton) in which P~ofessor Swinton found that the grievor normally works "an eight hour shift Page 11 from Monday to Friday". In that case, the grievor met the pre-condition of a "next scheduled shift" as required by article 14.1 and was entitled to the call-out pay. The Corporation of the C~t? of ~tob~coke and ~ of ~tob~coke C~v~c ~m~loyees' Union, Local 18~ (P.M. Draper) (unreported) was not helpful. Mr. Draper found that the arti~ie on call-out pay was clear and unambiguous, and if the .. employee met the conditions set out in the article, the employee was entitled to the call-out pay. The wording of that collective agreement was different as call-out pay related to work' outside "their regular working hours", which is a broader term than "next scheduled shift" which is the terminology in the collective agreement before us. Therefore, although Ron Elliot, and Murray Baker left work and were inconvenienced by having to re-attend after they left work and before they expected to .appear to ' work the following day, the nature of the grievors work prevents the grievors from meeting all the pre-conditions set out in Article 14.1. Therefore, this grievance is dismissed. Dated at Toronto this 31st day of Octoberl990. B~ A. Kirkwood~ Vicechairperson "I DISSENT" (Dissent attached) J. McManu s, Me.m._he r I. Cowan, M0mber GSB File No. 90/89 Baker/Ellio~t. -2- DISSENT I have had an opportunity to read and review the decision of Ms. Kirkwood, the Vice Chairperson. I agree with Ms. Kirkwood's interpretation of Article 13, as it relates to Article 14.1. That is, Article 13 does not preclude the application of Article 14.1. I also agree that in order to receive entitlement to callback pay pursuant to Article 14.1, an employee must (1) leave his place of work, (2) be-subsequently called back to work, and (3) he must be called back to work prior to the startipg time of his next scheduled shift. - I do not agree with the conclusion reached by the vice' Chairperson that "the grievors' work prevents the grievors from having a "next scheduled shift"". In her decision the Vice Chairperson referred to the evidence of the grievors that their normal work period falls between the hours of 8:30 a.m. and 4:30 p.m. and the evidence was that this occurred on a regular basis Monday to Friday. The grievors also testified and the evidence was that in the event there is a greater demand for work than may be accomplished between those hours, the work is quite obviously performed outside of these normal hours. The grievors estimated that this amounts to approximately 20% of 'the work, while at other times there will be no demand for work outside of 'these ·normal hours. The evidence also indicated that there was no regular or usual pattern for the time spent outside of the normal hours of work between 8:30 a.m. and 4:30 p.m. Monday to Friday, as the nature of the inspectors work requires them to attend to duties, such as those indicated in the Vice Chairperson's decision, "such as investigating stop orders and investigating fatalities and injuries, which, by their very nature can occur at any time and not' within a particular shift....", or indeed within any normal period of work. The callback examples that are the subject matter of the grievances before this Board are quite obvious examples of the kind of work that was referred to in the evidence and identified by Ms. Kirkwood as outside of normal hours of work. However, to conclude that there may be, 'from time to time, a good deal of this kind of callback Work cannot mean that the grievors do not have. normal hours of work or "scheduled shifts". This conclusion begs to question. It is clear from the evidence that the grievors work regular, usual or normal work period from 8:30 a.m. to 4:30 p.m. Monday to Friday. They also may work many additional hours. Some extra hours are related to regular overtime beyond their normal hours of work, and some extra hours are as a result of callback to work. In those instances where the additional hours are temporally related to the normal or usual hours of work of the inspectors, the additional hours constitute overtime for which the grievors are not entitled to compensation under Article 13. By contrast where the additional hours come about as a result of a callback, these fall within Article 14.1, not under Article 13. Ms. Kirkwood refers to the fact that the job "has more flexibility than shift work", and that "an employee may be late or work at times other than the usual hours". This may occasionally occur but it is not a regular feature of the normal or regular schedule of work of the grievors. Ms. Kirkwood refers to the practice of the department to permit lieu time for hours worked outside of normal hours as an indication of flexibility. The fact that the department has permitted the employees lieu time for additional hoUrs worked outside of the normal or regular hours is not really 'an indication of "flexibility", but rather a recognition that it is unfair to require the grievors to work a very substantial number of extra hours for which they receive no compensation in any form. Ms. Kirkwood concludes that the grievors do not have a "next' scheduled shift" and therefore are disentitled from the benefits of Article 14.1. She refers to a definition of "shift" from the Shorter Oxford English Dictionary that is extraordinarily narrow, a feature that she recognizes. The much more valid meaning of "shift" is "a scheduled period of work or duty" (Webster's New collegiate Dictionary, 1976). As ~the grievors indicated in their evidence, they had a regularly scheduled period of work or duty from 8:30 from 4:30 p.~m. Monday to Friday. Ms. Kirkwood makes a major distinction between the words "scheduled shift" and "normal working hours" as those words were used in the case of OPSEU (Fawcett) and The Crown in Right of Ontario (Minlstrv of Transportation and Communication) GSB 275/82 (P.M. Draper). Ms. Kirkwood makes a distinction where there is no difference. She seeks to distinguish the use of the term. "regular working hours" from "next scheduled shift", by observing that the words "regular working hours" are a "broader term". However, a shift is simply a period of work or duty, and in our case this "shift" is regularly scheduled, although the grievors may, from time to time, work outside of these scheduled or "regular working hours". As "shift" is simply a "scheduled period of work or duty", and as the grievors have a regular or normal work period "scheduled" between 8:30 a.m. to 4:30 p.m. Monday to Friday, it must be said that, in the words of Professor Swinton in OPSEU CBell) and the Crown in Right of Ontario (Ministry of Community and Social Services) GSB 116/78, the grievors normally work "an eight hour shift from Monday to Friday". In summary, the distinction tha~ Ms. Kirkwood intends to make is a false difference that should not be used to disentitle the grievors to 'the callback provision o~ the Collective Agreement when they are forced to respond to unpredictable, urgent or emergency situations occurring at all hours of the evening or night, that seriously disrupt the lives of the grievors, and which must be within the contemplation of the parties as compensable under Article 14.1, especially as the grievors are also expected to work normal or regular hours of work from 8:30 a.m. to 4:30 p.m. Monday to Friday. It makes no good sense to deny the grievors compensation for this "inconvenience" (to use the grossly understated description of the Vice Chairperson) by forcing a distinction between regular, normal or usual working hours on the one hand and the words "scheduled shift" on the other. In the circumstances I would allow the grievance. day of October~ 1990 J. McManus, Union Nominee'