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HomeMy WebLinkAbout1992-3381.Walker.94-07-18 I ---- -- I -:0; ~ ONTARIO EMPLOYES DE LA COURONNE - - CROWN EMPLOYEES DE L 'ONT ARIO~ - 1111 GRIEVANCE COMMISSI,ON DE SETTLEMENT . REGlEMENT BOARD DES GRIEFS / 180 DUNDAS STREET WEST SUITE 2100 TORONTO. ONTARIO. M5G lZB TELEPHONEITELEPHO/'J...E (416) 326-7388 180. RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITEU3COPIE (416) 326-1396 3381/92 IN THE MATTER OF AN ARBITRATION . Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Walker) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General) Employer BEFORE O. Gray Vice-Chairperson I Thomson Member J Miles Member J FOR THE 'M MacKinnon GRIEVOR Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE M. Smyth EMPLOYER counsel G~nest Murray Des~risay Lamek HEARING september 15, 1993 - '\ -.----- ( ( ) i' - ~ I Decision I I Don Walker has been the bUIldmg caretaker at the OPP detachment m Minden I smce 1974 EffectIve October 1, 1990, two Items were added to his job descrIptIOn. "remOVIng snow from parking lot" and "remaining on 24-hour call for un- usuaVemergency caretaking sItuations" These two grievances, both filed December 3, ( 1992, arIse out of those changes \ The detachment commander dUrIng the relevant perIod was Staff Sergeant BIll Elliot. It is common ground that at some time in 1990 Mr EllIOt and Mr Walker had a conversatIOn or conversations about whether Mr Walker's pay could be increased. Mr EllIot made inqUIries to determme whether the grievor could be "upgraded" from hIS BUIlding Caretaker I classification. He was told that that would not be possible unless ,/ the grievor was m charge of other personnel, which was not the case. He reported that to the grievor J The grIevor claIms that in a subsequent conversatIOn m August or September I 1990, Mr EllIot told him that he would put him on call at $0.25 per hour In November 1990, Mr Elliot gave him a copy of his updated Job deSCrIptIOn WIth the new reference to his "remaInIng on 24-hour call for unusual/emergency caretakIng situations." The gnevor says that on that occaSIOn Mr EllIOt told hIm that he would be on call and re- "' \ CeIve "on call pay" The grIevor notIced that hIS pay cheques dId not reflect an increase for on call pay As a result, he claIms, he spoke to Mr EllIOt In December 1990, and asked when it would come on his pay cheque He says Mr EllIOt replied that these thmgs take a while and that he should be patIent. He dId not receIve any on call pay thereafter He dId nothing more about this until November 25, 1992, when he asked Mr EllIOt when he would be paId on call pay Mr EllIOt saId he would look Into It. In a subsequent conversatIOn, Mr Elliot told the gnevor there was no way the Mimstry was -- I.- f'. ( \ ) " -2- gomg to pay hIm to be on call. The grievor then contacted the umon about pursumg a claIm for on call pay Mr Elhot demes havmg had any conversatlOn wIth the gnevor concernmg hIS be- mg on call or receIvmg on call pay before November 25, 1992 when, accordmg to hIm, the gnevor raI$ed for the first bme thIS clalIIi for on call pay for all hIS off work hours since October 1990 Removal of snow from the detachment parkmg lot had prevlOusl.y been done by a pnvate contractor The gnevor and Mr Elliot agree that m 1990 they dIscussed the grievor's taking that over The gnevor was wIllmg to do that. Before making thIS ar- rangement, Mr ElllOt asked the grievor whether he would prefer compensating tIme off to overtIme pay for time spent on snow removal outsIde hIS regular hours of work. The grlevor told hIm he would prefer compensatmg time off. Mr Elliot instructed the gnevor that he was not to walt for a call from anyone If I there was snow on the ground in the early morning, he was to go to work and clear the snow by 8'00 a.m. It generally took the gnevor about two hours to clear snow from the parking lot, using a garden tractor and snow plow attachment whIch the detachment had bought for thIS purpose. The gnevor's regular hours of work were 7'00 a.m. to 4'00 p.m., Mollday to Friday On his regular work days, the gnevor ordinarily 'got up for I work at 5'00 a.m. If he saw fresh snow at that time on a workday, the grievor went to ) work an hour early, so that he had the lot clear by 8'00 a.m., and then left early at the end of the day The gnevor was also expected to deal with snow that fell on weekends and holidays when he was not scheduled to attend at work. So, during the snow season he also got up at 5'00 a.~. on hIS rays off, to see if fresh snow had fallen. If It had, he went to work so that the lot was clear by 8'00 a.m. He kept notes of the hours he spent I on weekends clearing snow He brought the notes to Mr Elliot and had him imtIal them after each of the first 6 such occaSlOns~ Mr ElllOt then told the grlevor that he dId not have to have his notes initIaled any more, but should simply contmue making notes and \ keep them where they could be seen If necessary The gnevor dId that, recordmg both ) I I I ( ( - i\ 3- I I i the time off to whIch he thought his weekend work entitled hIm and the amount of time off he took. \ I For each occasion m the wmter of 1990-91 on wh~ch he went m on a weekend or other day off to plow snow, mcludmg the first 6 occaSIOns for whIch Mr EllIot mitIaled the notes, the grIevor noted an entitlement to compensating time off equal to 1 Y2 times the actual time spent. Durmg the wmter of 1991-92, he credIted hImself with a mim mum of 4 hours' compensatmg time off for each such occaSIOn, because he had become J aware that secretaries m the office were claImmg a mmimum of 4 hours when they were called m. He did not dISCUSS thIS change wIth Mr EllIot. In the notes he made in December 1992 about November 14, 1992 and subsequent occaSIOns m November-and December of 1992, he recorded a 6 hour entitlement (4 hours at time and a half) be- cause the union steward he consulted on December 3, 1992 adVIsed hIm that ArtIcle 14 of. the collective agreement gave him that nght. Mr Walker grIeves that from and after November 1990 he ought to have been paId for bemg on call during all hours when he was not at work, pursuant to ArtIcle 16 . { of the relevant collective agreements. ArtIcle 16 of the collective agreement m force I \ January 1, 1989 to December 31, 1991 provIded that. ARTICLE 16 ON-CALL DUTY \ 16.1 "On-call duty" means a period of time that is not a regular working period, overtime period, stand-by period, or call-back period, durmg wluch an employee is required to be reasonably available for recall to work. 16.2 On-call duty shall be approved prior to the time the employee is required to be on call. 16.3 Where an employee is required to be on call he shall receive twenty-five cents (25~) per hour for all hours such employee is assigned to on-call duty ArtIcle 16 of the collective agreement in force January 1, 1992 to December 31, 1993 prOVIded that. ( ) ( I \. -4- ARTICLE 16 ON-CALL DUTY I 16.1 "On Call Duty" means a period of time that is not a regular working period, overtimepenod, stand-by period or pall-back period during which an employee is required to respond within a reasonable time to a request for (a) recall to the work place, or (b) the performance of other work as required. 16.2 It is understopd that a return to the workplace may not be necessary in all situations. 16.3 It is upderstood that there shall be no pyramiding of premium payments and where work is performed as outlined in subsections 16.1(a) or 16. 1 (b), call back payor overtime pay shall be substituted, respectively for the on-call premium. 16.4 Should recall to the workplace be required the employee is expected to be able to return to the workplace within a reasonable time. I 16.5 No employee shall be required to be on-call unless such on-call duty was authorized in writing by ~he supervisor prior to the on-call period, except in circumstances beyond the Employer's control. 16.6 Where on-call is not previously authorized in wrItmg, payment as per Section 16.7 shall only be made where the supervisor has expressly advised the employee that he is on-call. I 16.7 Where an employee is required to be on-call, he shall receive one dollar ($100) per hour for all hours that he is required to be on-call. The union argues that the grievor's Job deSCrIption (which was signed for Mr El hot as the grievor's supervIsor by an officer actmg on his behalf m his absence) and the 1990 oral dIscussions between the grIevor and Mr EllIot satisfy the approval re- qUirements of ArtIcle 16 1 of the 1989-91 collective agreement and of either ArtIcle 16 5 or 16 6 of the 1992-93 collectIve agreement. Umon counsel CItes Bennett, 276/88 (Wilson) for the propositIOn that an employee who must stand ready to return to work \ withm a reasonable time IS just as much "on call" when instructed to return to work m response to a third party's call or some other pre-defined stimulus as when a return to . I work wIll only be trIggered by a supervIsor's call. She also refers to Bedard, 1281/85 (Brandt) where, at page 7, the Board observed that the nature of the duty determmes ItS characterIZatIOn, and it does not matter whether the duty was voluntarily assumed or not. - I I -------- ----- ( ~ -5 ~ The umon also argues that the gnevor was entItled under ArtIcle 14 of each of the relevant collective agreements to mimmum "call back" pay of 4 h6urs at time and a half for each of the occasIOns on whIch he attended at work to plow snow on a day when he was not scheduled to come in for any other reason, as well as three additional occa- I sions in the period November 1990 to December 3, 1992 when an officer at the detach- ment called hIm m to work outsIde of his regular hours. He does not claIm call back pay for the occaSIOns when he attended an hour early on a regularly scheduled work day In both the 1989-91 collective agreement and the 1992-93 collective agreement, ArtIcle 14 says thIS. ~ 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 offour (4) hours' pay at one and one-half (1 1/2) tImes Ius basic hourly rate. The union asks that we award the gnevor pay for amount by whIch rus entitlement cal- culated that way for all such occasions exceeds the tIme he has already taken as com- pensating time off. " Each of the relevant collectIve agreements provides, in ArtIcle 27, that an em- ployee who believes that he has a complamt or dIfference arIsmg out of the interpreta- tion, applIcation, administratIOn or alleged contravention of the agreement "shall first \ dIscuss the complamt or dIfference with his supervIsor wIthm twenty ~(20) days of first becommg aware of the complaint or difference." If the complamt IS not satisfactorIly settled by the supervIsor within 7 days, it may then be addressed through a process whIch may be begun by filing a Written grievance wIthin a further 10 days ArtIcle 27 13 proviCles that if a grievance "lS1 not processed withm the time allowed or has not been processed by the employee or the Umon wIthm the time prescribed It shall be deemed to have been wIthdrawn." The grIevor says hIS delay in filmg a grIevance about the on call pay claIm was a result of the conversatIOn he claims to have had wIth Mr EllIot m December 1990 He "- i --_.~_. --.- - ( ( -6- \ says he decided to raIse the matter with MrEllIOt agam in November 1992 because he understood that Mr Elliot was about to go on slCk leave He states that he was not aware of hIS rights under ArtIcle 14 to mlmmum call back pay until he spoke to the un- - ion steward about lu,~ on call pay claim on December 3, 1992, the day he filed these grievances The grievor acknowledges that durmg perIOds when he claIms to have be- lieved hImself to be on call he went on tripS out of town from time to time - as far as Walkerton, a three hour drive from Mmden - without mformmg anyone at the de- ~ tachment or leaving a number at which he could be reached. He admIts that m the con- versations he alleges he had with hIm, Mr Elhot never told him that he would receIve retroactIve on call pay, nor did he ask the .grIevor not to file a grievance When it was put to him that he never discussed wIth Mr Elhot what bemg on call meant, he rephed that the only thmg saId was that he was not to wait for a telephone call, that If there was snow he was to go in and have It done by 8.00 a.m. He also acknowledged that he was not expected to come m and clear snow in the mIddle of the mght. Umon counsel argues that m VIew of Mr EllIot's assurances m 1990, the normal 20 day rule does not apply to the on call pay claIm, cItmg Callendar, 2510/90 (Keller) On the basis of Pu!rre, 0492/86 ry erity), she submIts that the 20 day time limIt did not apply to the "callback" pay claIm, because he was not aware of lus right to It untIl the day he filed his grievance The employer's posItIOn IS that there was no oral authorIzation of on call status by MrElhot, and that the grIevor's Job descrIptIOn cannot by Itself constitute authori- zatIOn. It says that the grIevor was never "on call," eIther generally or m relatIOn to snow removal. Its counsel argues that Article 14 does not apply to occasions when the gri~vor came in on weekends to shoveJ snow because no-one called hIm in. He submits that this was a "pre-authorized overtime" sItuation, rather than a call back one, and re- lIes on the distinction made at page 8 of the Board's decision in Charette, 0026/88 (Wilson) Employer counsel also cites Grant, 197/83 (Kennedy) for the propOSItIOn that there must be "a degree of mconvenience and dIsruptIOn of the employee" before the cir- cumstances come wlthm the intent of the "call back" pay proviSIOns of ArtIcle 14 He ar- --- I I \ 7- \ gues that the dIsruptIOn was mimmal here because the grIevor agreed to It m advance The employer also takes the posItIon that If there has been any breach of the collectIve f agreement, a remedy cannot reach back more than the 20 day perIod specIfied m ArtIcle 27 Itscounsel\cites Stephen C Smah, 237/81 (Roberts) and C Aubm, 515/88 (Knopf) in support of that posItIOn. Decision The Board has held that a grIevor's delay m fihng a WrItten grievance after raIsmg ItS subject matter orally wIth management will not hmIt the recovery to whIch that grIevor would have been entItled but for ArtIcle 27 If, durmg the perIod of the de- lay, there was "at least a tacIt understandmg that the purpose of raIsmg the Issue was to avoid the need for a formal grievance", a management representatIve was actively mvolved In the employee's claim and there was a contmued understanding that the claIm had not been demed by management but was stIll bemg consIdered. Marshall, 1797/89 (Keller), Callendar, 2510/90 (Keller) It has also held that the words "wIthm twenty (20) days of first becommg aware of the complamt or dIfference" in Article 27 create a subjective test. The 20 day perIod does not begin to run unless and untIl the grIevor is aware not only of the facts on which a complamt might be based but also that those facts give rIse to a complaint or dIfference concernmg the mterpretatIon, apphca- tio~ admmIstratIOn or alleged contraventIon of the collectIve agreement. P~erre, \ 0492/86 (Verity), judo rev denied (1990), 74 O.R. (2d) 700 (Ont. Div Ct.) sub nom The Queen m nght of Ontano as represented by the Mimstry of Correctwnal Sermces v On- tano Publ~c Sermce Employees Unwn et al We adopt and apply those perspectives in assessing the tImehness issue here The grievor does not claim ignorance of his rIghts as an excuse for the delay in filmg a grievance about his entitlement to on call pay Even If Mr Elliot said what the grIevor claIms he did m 1990, that can neIther explam nor excuse all of the apprOXI- mately two year delay Whatever the grIevor may have heard from Mr EllIot in and be- fore December 1990, his experience of ~mployer's contmued failure to pay him on call J { - J ( ( , -8- pay thereafter was, over time, IncreaSIngly InCOnsIstent WIth any belief that the em- ployer consIdered hIm entItled to such pay Indeed, that faIlure to pay was, over time, an increasingly insIstent message that the employer was not actively consIdering gIVIng /' him on call pay for the period beginning November 1990 Someone as sensible as the grievor appears to be would have got that message well before November 1992 The grievor's admitted faIlures to remam reasonably available for recall to work at all times outside hIS regular work hours, ,apparently wIthout feehng any obhgation to report lus unavaIlabihty to management, support the mference that he dId not beheve, or at least came to not beheve, that he was under that obhgatIOn durmg all such hours. The fact that he dId come m when called on two or three occasions outsIde the snow season does '" not demonstrate eIther that he was on call or that he thought that he was on call. In ,the cIrcumstances, It demonstrates no more than hIS willmgness to help when asked In any event, the tests propounded m Marshall and Callendar have an objective element. for the entIre period of the delay there must be a reasonable basIs, grounded in the be- havIOur of management, for a belief by the grIevor that ius entItlement to on call pay was still being consIdered by management. If there ever was a basis for such a behef, It ceased to be a reasonable oJ?e well before November 1992 In our VIew, two dungs follow from the. delay One IS that this grievance IS un- tImely wIth respect to any alleged faIlure to pay on call pay which occurred more than 20 days prior to the grievor's conversation wIth Mr EllIOt on November 25, 1992 The other IS that by November 1992 the grievor had no reasonable basIs for behef that he was on call durIng all hours other than hIS workmg hours. Hence, a claIm to that effect cannot succeed even with respect to hIS non-workmg hours durIng and after that 20 day period. The evidence does, however, support a more modest claIm that the grIevor was on call durmg certam off-duty hours as a result of the standing InstructIOns he had been gIven about removing snow The necessary effect of the express Instructions Mr EllIot gave him was that every day during the season when snow mIght fall, the grievor had to be ready to check for snow at 5 a.m. and, if required, return to the workplace by 6 a.m. for approxImately '- --;>; -9 I two hours of snow clearmg The evidence does not suggest that the grievor was expected to clear snow at any other time outsIde hIS normal work hours The sIgnal that he was required to return to the workplace on any partIcular day was not a call from hIS su- pervIsor, but the sight of newly fallen snow The fact that the prearranged trigger for an unscheduled attendance at work IS somethmg other than a human VOIce does not ! change the nature of the duty m any way wluch IS relevant to the apphcation of ArtIcle 16 The requIrement in ArtIcle 16 6 of the 1992-93 agreement that the supervisor "expressly adVIse" the employee that he IS on call does not require that the words "on calf' be used. It IS enough that the supe~Isor's mstructlOns Impose "on call duty" as de- fined by ArtIcle 16 1 Mr EllIot's express mstructions WIth respect to snow removal Im- ) posed "on call duty" The fact that the grIevor volunteered for that duty does not dImin- Ish Its "on calf' nature. The eVldence IS that the grIevor performed snow removal on November 14, 1992 In the absence\ of eVIdence to the contrary, we find that the expectation that the gnevor would watch for snow and remove It If It fell was operative throughout the 20 daype- riod prlOr to November 25, 1992, and contmued until December 3, 1992 when Mr EllIot informed hIm m Writing that he would not be on call thereafter unless notified in writ- ing The hours in that perIod during whIch the grlevor was on call for purposes df ArtI- cle 16 7 would be the hours in respect of whIch he could not have commItted in advance to any activIty inconsistent with lus duty Those periods would begm when he first had to be ready to receive a "call." In this case, that would be 5 a.m. each day Each on call penod would end (If he was not called back) at the end of the penod during which he mIght have to work outSIde hIS normal works hours in response to a call. On regular work days that would be 7 a.m., when lus normal work hours began. On days on which he was not scheduled for work, It would be 8 a.m., the time by wluch he would be fin Ished removing snow if called upon to remove It. The grIevor IS entitled to be paId for those hours in accordance with ArtIcle 16 7 of the 1992-93 agreement. Turning to the call back pay claIm, the dIstmction made in Charette, supra, was not between a call back and "pre-authorized overtime", it was between a call back and \ ~ ., .10. r "pre-scheduled overtIme" The return to work at Issue m Charette was one whIch had 1 been arranged before the employee left work. At page 8 of that decIsion, the Board ob. served that the wording of Articl~ 14 clearly says "leaves his place of work and is subseauentlv called back to work prior to the start time of his next scheduled I shift. That clearly means the actual notification to report to work prior to the I start time of the next scheduled shift occurs after he has left the work place, i.e. between his scheduled shifts. (emphaSIS m orIgmal) '- Just as with on call duty, it does not matter to the applicatlQn of Article 14 I whether the notificatIOn to gQ to work IS effected by way a supervIsor's call or by the oc- currence of an event to which the employee had been instructed to respond, nor whether the employee has expressed a wilhngness to return to work If called. The returns to work for wluch the grievor claIms call back pay were not "pre-scheduled", in each case f the event whIch determined rthat he would return to work occurred between scheduled ) shifts. Accordmgly, he was entitled to call back pay under ArtIcle 14, What he learned \ , in 1991 about others charging for 4 hours on call back mIght have alerted the grievor to inqUIre about lus entitlement then, but he dId not. The time m ArtIcle 27 does not begm I. when for some reason the grievor ought to be aware of hIS complamt, but only when he ~s aware of It. Tlus grIevor was not aware of hIS rIghts under ArtIcle 14 until the day he filed his grievance Accordmgly, hIS recovery IS not hmited by ArtIcle 27 The grievor was and IS entitled to have hIS compensatIOn or compensatmg time off for the call backs in questIOn calculated in accordance WIth ArtIcle 14 The umon asks that we award the grIevor pay for amount by whIch hIS entitlement calcul8;ted that way for these occasions exceeds the time he has already taken as compensatmg time off. There is no suggestIOn that thIS would be an inapproprIate remedy if hIS claIm suc- ceeded Accordingly, with respect to the occaSIOns on WhICh the grIevor's notes record that he returned to work either to remove snow or at the request of someone at the de- I - !: . 11 ~ tachment, the employer is dIrected to pay the gnevor the amount by whIch hIS entItle- I ment for those occasIOns calculated m accordance wIth ArtIcle 14 exceeds the amount to which h~ would have been entitled for the time he has already taken as compenSatmg \ I time off. For the period from November 5 to December 3, 1992, mclusIve, the employer IS dIrected to pay the gnevor on c~ll pay equal to one dollar for each day he went m at 6 a.m. to clear snow and, for days when he did not clear..snow, two dollars for days on whIch he was scheduled to begm hIS regular work at 7 a.m. and three dollars for days on whIch he was not scheduled to work. The employer IS also dIrected to pay the gnevor interest on the aforesaId sums calculated from December 3, 1992 to the date of payment at the rate off mterest whIch would have been ;1pphcable to. recovery m a CIVIl SUIt filed on December 3, 1992 We remam seIsed WIth any Issue relatmg to the implementatIOn of these dIrections Dated this 18th day of July, 1994 '~ r.; ....,N~~ j I Thomson, Member ~~e= v ( ( i