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HomeMy WebLinkAbout2002-2427.Union Grievance.04-01-26 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2427 UNION# 2002-0999-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE RIchard Brown Vice-Chair FOR THE UNION Kelly WaddIngham Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING November 25 27 & 28 2003 2 DeCISIon ThIS pohcy gnevance claims stand-by or on-call pay for employees desIgnated to provIde essentIal or emergency servIces dunng the 2002 strike m the Ontano Pubhc ServIce The umon contends all employees who receIved letters desIgnatmg them as essentIal or emergency workers are entItled, by vIrtue of those letters, to eIther stand-by payor on-call pay In the alternatIve, the umon argues essentIal and emergency workers governed by decIsIOns of the Ontano Labour RelatIOns Board (OLRB), relatmg to correctIOnal facIlItIes and psycluatnc hospItals, are entItled to be paid for eIther stand-by or on-call, by vIrtue of those decIsIOns In relatIOn to both arguments, the umon claims pay for all hours not actually worked dunng the fifty-four days of the strike The pnmary claim IS for stand-by pay, on-call pay IS claimed m the alternatIve On the first day of heanng, the partIes asked me to answer four questIOns at tlus stage m these proceedmgs 1 DId the desIgnatIOn letters reqUIre employee recIpIents to mamtam a state of readmess whIch satIsfied the cntena m the pre-stnke collectIve agreement for detennmmg ehgibIhty for stand-by or on-call pay? 2 DId the decIsIOns of the labour relatIOns board reqUIre the employees governed by them to mamtam a state of readmess whIch satIsfied the cntena m the pre-strike collectIve agreement for determmmg ehgIbIhty for stand-by or on-call pay? 3 If emergency employees were reqUIred to mamtam a state of readmess whIch would have entItled them to stand-by or on-call pay before the stnke, dId the reqUIrement to mamtam tlus state of readmess tngger the apphcatIOn of the pre-strike collectIve agreement to these employees m the context of the work stoppage? (The answer to tlus questIOn lunges upon the proper mterpretatIOn of the "condItIons document" whIch regulates coverage under the collectIve agreement dunng the strike) 3 4 If an employee was covered by the pre-strike collectIve agreement dunng the work stoppage, and If he or she was reqUIred to mamtam a state of readmess whIch would entItle hIm or her to stand-by or on-call pay m a non-strike scenano, would the failure of the employee to mamtam that state of readmess, wIthout proper JustIficatIOn, have dIsentItled hIm or her to stand-by or on-call pay? When the heanng contmued on the second day, counsel for the umon conceded the answer to the fourth questIOn was m the affirmatIve The only Issue remammg WIth respect to tlus questIOn IS what would constItute "proper JustIficatIOn" for faIlmg to mamtam the reqUIred state of read mess No submIssIOns were made on that Issue As to whether the cntena m the collectIve agreement were met, the employer reserves the nght to call further eVIdence at a later date, dependmg upon the ruhngs made on the first two questIOns The desIgnatIOn letters receIved by most employees dId not expressly mentIOn stand-by or on-call, but some employees receIved letters exphcItly tellmg them they would be on stand-by or on-call duty The employer concedes these employees are entItled to be paid the appropnate premmm for such assIgnments I The prOVISIOns of the collectIve agreement relatmg to stand-by and on-call are the same for all bargammg umts, save for the numbenng of relevant artIcles Those apphcable to the admmIstratIve umt are ADM 1 0 and ADM 1 1 As to stand-by pay, artIcle ADMIO states ADMIO 1 "Stand-by TIme" means a penod of tIme that IS not a regular workmg penod dunng whIch an employee IS reqUIred to keep hImself or herself (a) ImmedIately aVailable to receIve a call to return to work, and (b) ImmedIately aVailable to return to the workplace 4 ADM10 2 No employee shall be reqUIred to be on standby unless such stand-by was authonzed m wntmg by the superVIsor pnor to the stand-by penod, except m CIrcumstances beyond the Employer's control ADM 1 0 3 Where stand-by IS not prevIOusly authonzed m wntmg, payment as per ArtIcle ADMIO 4 shall only be made where the superVIsor has expressly advIsed the employee that stand-by IS reqUIred ADM10 4 When an employee IS reqUIred to stand-by, he or she shall receIve payment of the stand-by hours at one-half (1/2) Ius or her basIc hourly rate wIth a mmImum credIt of four (4) hours pay at hIS or her basIc hourly rate ADM 1 1 governs on-call pay ADM11 1 "On-Call Duty" means a penod that IS not a regular workmg penod, overtIme penod, stand-by penod or call back penod dunng whIch an employee IS reqUIred to respond wIthm a reasonable tune to a request for (a) recall to the workplace, or (b) the perfonnance of work as reqUIred ADM 1 1 4 Should recall to the workplace be reqUIred the employee IS expected to be able to return to the workplace wItlun a reasonable tIme ADMll 5 No employee shall be reqUIred to be on-call unless such on-call duty was authonzed m wntmg by the supervIsor pnor to the on- call penod, except m CIrcumstances beyond the Employer's control ADM 1 1 6 Where on-callIs not prevIOusly authonzed m wntmg, payment as per ArtIcle ADM 1 1 7 shall only be made where the supervIsor has expressly advIsed the employee that he or she IS on-call ADM 1 1 7 Where an employee IS reqUIred to be on-call, he or she shall receIve one dollar ($1 00) per hour for all hours that he or she IS reqUIred to be on -call 5 Stand-by duty and on-call duty are analogous m three respects (1) both obhge an employee to answer every call from the workplace, (2) both obhge an employee to work whenever called, and (3) as a logIcal corollary, both subject an employee to dIscIplme for not fulfilhng these obhgatIOns The major dIfference between stand-by and on callIs that the former reqUIres an employee to mamtam a hIgher state of readmess than the latter So long as employees are not subject to dIscIphne for not answenng every call or not workmg whenever called, the employer may reqUIre them to provIde some level of "general aVaIlabIhty" for work, wIthout creatmg an entItlement to payment for eIther stand-by or on-call In Mlnzstry of Solzcltor General and Correctzonal Servlces and OPSEU (Adams Group), G S.B No 0389/97, decIsIOn dated March 20, 2000, I wrote In most of the cases mentIOned by counsel, the gnevors who claimed stand- by pay had already receIved on-call pay for the tIme m questIOn In other words, there was no dIspute that they were reqUIred to mamtam one of the two states of readmess descnbed m the collectIve agreement The only questIOn was whIch one of these states apphed as detennmed largely by the tIme frame for an employee to respond to a call Stand-by duty reqUIres a faster response than on-call duty Of the cases cIted, [OPSEU (Jone5,) andMlnzstry ofSolzcltor General and Correctzonal Servlces, GSB No 109993, dated September 12, 1994 (Devlzn)] IS the only one to consIder whether a gnevor was reqUIred to mamtam eIther of the states of readmess specIfied m the contract The decIsIOn m that case rests upon a dIstmctIOn between a reqUIrement of "general aVaIlabIhty", the term used by Ms Devhn, and the sort of reqUIrement gIvmg nse to eIther on-call or stand-by pay On any partIcular occasIOn, the gnevor was permItted not to take a call and not to work If contacted In other words, mIssmg a call or refusmg work would not result m dIscIplme ThIS IS why Ms Devhn held he was not entItled to on-call or stand-by pay Yet there was a reqUIrement of" general aVaIlabIhty", as Ms Devhn noted. The employer had stressed the Importance of bemg aVailable on weekends When the gnevor had mIssed too many calls, Ius lack of aVaIlabIhty was noted on hIS performance appraisal In short, the gnevor was reqUIred to be aVailable a certam amount of tune over the term of Ius contract ThIS reqUIrement dId not entItle hIm to on-call or stand-by pay 6 There IS a sound basIs for the dIstmctIOn drawn m Jones Both on-call and stand-by pay are desIgned to compensate an employee for bemg aVailable m case he or she IS needed to work. The tacIt assumptIOn underlymg each form of payment IS that, throughout the penod for whIch It IS paid, an employee must take calls and must work If asked As employer counsel argued, the collectIve agreement should not be mterpreted so as to entItle an employee to payment for any penod when he or she IS pennItted eIther not to receIve a call or not to work If contacted. The gnevor m Jones could mISS a call or refuse work wIthout bemg dIscIphned. Accordmgly, he was not entItled to on-call or stand-by pay (pages 16 and 17) II In a non-strike scenano, certam employees m some bargammg umts are placed on stand-by or on-call duty, but such assIgnments are not made mother umts The umts wIth stand-by or on-call duty are (1) mstItutIOnal and health care, (2) operatIOnal and mamtenance, (3) techmcal, and (4) admmIstratIve Stand-by or on- call assIgnments are not made m the two remammg umts office admmIstratIOn and correctIonal When the partIes negotIated umt-Ievel agreements for the prOVISIOn of essentIal and emergency servIces, they followed the estabhshed pattern, creatmg a framework for stand-by and on-call duty m the umts where such assIgnments normally were made and not m the others The agreements for the office admmIstratIOn and correctIOnal umts made no mentIOn of stand-by or on-call In contrast, the Overarchmg EssentIal ServIces Agreement, dated January 10,2002, for three umts-mstItutIOnal and health care, operatIOnal and mamtenance, and techmcal-stated m paragraph 9 It IS understood and agreed that the normal collectIve agreement prOVISIOns covenng "overtIme", "call back","stand-by" and "on-call" duty wIll contmue to apply to all essentIal and emergency workers dunng a labour dIspute Employees on emergency status wIll be placed on eIther "stand-by", "on-call" or "call back" status as authonzed m wntmg by the Employer dunng the selectIOn process held unmedmtely pnor to the commencement of the labour dIspute 7 LikewIse, the EssentIal and Emergency ServIces Agreement for the admmIstratIve umt, dated December 11,2001, stated m paragraph 5 Should the Employer determme that an emergency worker wIll be placed on "standby" or "on call" as per the collectIve agreement, It wIll notIfy the Bargammg Teams and the appropnate umon worksIte representatIve pnor to the selectIOn process The emergency worker wIll be notIfied after the selectIOn process III The same pattern was reflected m the desIgnatIOn letters sent to emergency workers, wIth respect to whether those letters expressly mentIOned stand-by or on- call There was no exphcIt reference to such assIgnments m the form letter sent to employees m the correctIOnal and office admmIstratIOn umts The same form letter was sent to most employees m the other four umts, but some employees m these umts receIved a dIfferent form letter whIch dId mentIOn stand-by or on-call Whatever form letter was used, each mdIvIdualletter was sIgned by the recIpIent's local manager The fonn letter sent to the vast majonty of emergency workers contamed no express reference to stand-by or on-call It stated. You have been desIgnated as an Emergency ServIces worker m accordance wIth the Crown Employees CollectIve Bargammg Act, 1993, sectIOn 40 (2) and sectIOn 41 (1) The servIce you work m has been desIgnated as an emergency servIce The defimtIOn of an essentIal servIce IS m the Crown Employees CollectIve Bargammg Act, 1993 and IS a servIce whIch IS necessary to enable the Employer to prevent a) danger to hfe, health or safety, , b) the destructIOn or senous detenoratIOn of maclunery, eqUIpment or premIses, c) senous envIromnental damage, or, 8 d) dIsruptIOn of the admmIstratIOn of the courts or of legIslatIve draftmg Dunng any work stoppage (strike or lock-out), If your manager detennmes there IS an emergency sItuatIOn for whIch you are reqUIred to report to work, you wIll be contacted wIth details of when and where to report to perform the emergency servIces work. You are legally requlred to report to work when you are contacted and to perform the emergency servlces work asslgned to you. rr you do not report to work as reqUlred, you wlll be consldered absent wlthout pre-authorzzed leave, not be entltled to pay and may be subject to dlsclplznary actzon You wlll be znformed of the hours you are expected to report to work, whlch may be zntermlttent, zncludzng coverage durzng off-hours throughout the week and weekend WIth the exceptIOn of AppendIx 9 and AppendIx 18, the collectIve agreement prOVISIOns shall apply when you are reqUIred to perform emergency serVIces work. Bargammg umt or worksIte essentIal servIces agreements define any specIfic terms and condItIons of employment whIch wIll affect you as an emergency servIce worker If you leave your place of work and are subsequently called back to work pnor to the startmg tune of your next scheduled shIft, you wIll be paid call back as per ArtIcle 9 of your bargammg umt' s CollectIve Agreement Should you not report to work when contacted by the manager, or should the manager be unable to contact you, any premmm payment you are receIvmg wIll be rescmded. We recogmze that strike and lockout sItuatIOns can be stressful and emotIOnal for everyone We ask that dunng thIS penod of labour dIsruptIOn, you contmue to exerCIse your professIOnahsm, common sense and patIence when performmg the responsIbIhtIes assIgned to you In the event that you are delayed by pIckets or feel that attemptmg to cross the pIcket hne may JeopardIze your health and safety you are to contact your manager to seek mstructIon If you have any concerns please feel free to dISCUSS them wIth your manager Thank you for your co-operatIOn (emphasIs added) 9 DId thIS letter place emergency workers on stand-by or on-call duty for the duratIOn of the strike? In the first three paragraphs, employees were told they had been desIgnated to provIde emergency servIces, the statutory defimtIOn of essentIal servIces was set out, and employees were mformed they would be contacted when reqUIred to work The specIfic obhgatIOns unposed upon them are contamed m the next two paragraphs of the desIgnatIOn letter The fourth paragraph said an employee was "legally reqUIred to report to work when contacted' (emphasIs added) The word "contacted" connotes the successful transmISSIOn of a message from one person to another There IS no contact when a callIs made but not receIved. For example, contact IS made when a manager makes a telephone call to an employee's home and he or she answers the phone, but there IS no contact If the hne IS busy or the phone nngs endlessly Accordmgly, thIS paragraph reqUIred employees to work when they receIved a message summonmg them to work, wIthout obhgmg them to ensure they were aVailable to receIve such a message The fifth paragraph told an employee that he or she would be "mfonned of the hours you are expected to report to work zncludzng coverage durzng off- hours throughout the week and weekend" (emphasIs added.) Off-hours must mean tune when an employee was not scheduled to work. The JuxtaposItIOn of "coverage" and "off-hours" mdIcates "coverage" means some sort of aVaIlabIhty for work dunng hours when an employee was not scheduled for duty WIth the foregomg understandmg of "off-hours" and "coverage" m mmd, I read tlus paragraph as tellmg employees that they would be "mformed" of two thmgs (1) the hours when they were scheduled to work, and (2) the non-workmg hours when they were expected to be aVailable for work m case theIr servIces were needed. ThIS paragraph clearly Imphes that an employee need not be aVailable for work, outsIde of scheduled hours, unless later told to be aVailable for a partIcular penod. 10 Readmg paragraphs 4 and 5 together, I conclude the desIgnatIOn letter sent to most emergency workers told them they mIght subsequently be mstructed to be aVailable for duty at certam tunes, but the letter Itself dId not reqUIre them to be aVailable, let alone reqUIre them to mamtam the specIfic level of aVaIlabIhty correspondmg to stand-by or on-call duty IV All essentIal workers receIved the same form letter It contamed no express reference to stand-by or on-call Here too all mdIvIdualletters were sIgned by the recIpIent's local manager The form letter stated. You have been desIgnated as an EssentIal ServIces worker m accordance wIth the Crown Employees CollectIve Bargammg Act, 1993, sectIOn 40 (1 ), 40 (2) and sectIOn 41 (1) The servIce you work m has been desIgnated as an essentIal servIce The defimtIOn of an essentIal servIce IS m the Crown Employees CollectIve Bargammg Act, 1993 and IS a servIce whIch IS necessary to enable the Employer to prevent a) danger to hfe, health or safety, b) the destructIOn or senous detenoratIOn of maclunery, eqUIpment or premIses, c) senous envIromnental damage, or, d) dIsruptIOn of the admmIstratIOn of the courts or of legIslatIve draftmg A5,' an essentzal serVlces worker, you are legally reqUlred to report to work durzng any work stoppage (~trzke or lock-out), and to perform the essentzal servlces work asslgned to you zn accordance wlth the workslte agreement If you do not report to work as reqUIred, you wIll be consIdered absent wIthout pre-authonzed leave, not be entItled to pay and may be subject to dIscIplmary actIOn You wlll be znformed of the hours you are expected to 11 report to work, zncludzng coverage durzng off-hours throughout the week and weekend. WIth the exceptIOn of AppendIx 9 and AppendIx 18, the collectIve agreement prOVISIOns shall apply when you are reqUIred to perform essentIal servIces work. Bargammg umt or work sIte essentIal servIces agreements define any specIfic terms and condItIons of employment whIch wIll affect you as an essentIal servIce worker We recogmze that strike and lockout sItuatIOns can be stressful and emotIOnal for everyone We ask that dunng tlus penod of labour dIsruptIOn, you contmue to exerCIse your professIOnahsm, common sense and patIence when perfonnmg the responsIbIhtIes assIgned to you In the event that you are delayed by pIckets or feel that attemptmg to cross the pIcket hne may JeopardIze your health and safety, you are to contact your manager to seek mstructIon If you have any concerns please feel free to dISCUSS them wIth your manager The last sentence m the tlurd paragraph of tlus letter IS almost IdentIcal to the fifth paragraph of the emergency desIgnatIOn letter Here too, employees were told they would be "mformed of the hours you are expected to report to work zncludzng coverage durzng off-hours throughout the week and weekend" (emphasIs added) Once agam, the fonn letter mdIcated two tlungs would be commumcated to employees (1) the hours when they were scheduled to work, and (2) the non- workmg hours when they were expected to be aVailable for work m case theIr servIces were needed The letter Itself dId not reqUIre them to mamtam any specIfic level of aVaIlabIhty for work, although It dId say they mIght subsequently be mstructed to mamtam some such level at certam tImes V The umon rehes upon five decIsIOns Issued by the OLRB The first decIsIOn, Crown zn Rlght o.rOntarzo and OPSEU, [2002] O.L.R.D No 1170, dated March 26,2003, dealt wIth nurses at four psychIatnc hospItals Lakehead, North Bay, 12 WhItby and PenatangUIshme The decIsIOn reqUIred the followmg notIce to be provIded to all emergency workers at these facIlItIes The four psycluatnc hospItals m the Ontano Pubhc ServIce have encountered dIfficultIes m mamtammg the reqUIred level of staffing dunng the current strike The level of staffing was agreed to by OPSEU and the HospItals m the essentIal servIces agreement In that agreement, they both agreed that there was a jomt responsIbIhty to try to ensure that sufficIent bargammg umt employees are aVailable to perform the necessary work. The Ontano Labour RelatIOns Board has Issued a decIsIOn, a copy of whIch IS attached to thIS NotIce settmg out what sort of cooperatIOn IS reqUIred. All RegIstered Nurses and RegIstered PractIcal Nurses should be aware of the followmg Employees who are essentzal serVlces or emergency workers must attend every shfft for whIch they are scheduled, orfor whlch they are called zn, unless prevented from domg so by a senous and unforeseen emergency such as an mcapacItatmg Illness No employee who IS an essentIal servIce or emergency worker shall restnct Ius or her aVaIlabIhty for work, or attempt to create a sItuatIOn where there are fewer staff aVailable than agreed to under the essentIal servIces agreement negotIated by OPSEU and the HospItal All persons employed as RN's or RP N's who have been gIven notIce as essentIal or emergency workers under the essentIal servIces agreement are hereby dlrected to advlse the Unzon and the hmpltal zn whlch they work of the hours they wlll be avazlable to work outslde of and beyond thelr regularly scheduled hours All such employees shall do so before 10 00 a.m on Fnday March 29, 2002 All such employees are dlrected to make reasonable efforts to be able to recelve notlcefrom thelr employer of a need to report to fill zn for an absent employee, and to attend at those shffts ff called zn to work zn the place o.f an absent employee (emphasIs added) The first paragraph of the notIce stated nurses "must attend every shfft for whIch they are called zn" unless prevented from domg so by an emergency (emphasIs added) The meamng of "called m" IS not as clear as the meanmg of 13 "contacted." When a manager's phone call to an employee produces a busy sIgnal, he or she has not been contacted, but reasonable people mIght hold dIfferent opmIOns as to whether the employee has been called m Some mIght tlunk the employee had been called m because the call had been made, whereas others mIght tlunk the employee had not been called m because the call had not been receIved. The fonner mterpretatIOn would obhge an employee to work whenever a call was made, whereas the latter would obhge hIm or her to work only when a call was receIved As both mterpretatIOns are plausible, the first paragraph IS ambIguous as to whether employees were reqUIred to be aVailable to receIve calls made to them by a manager ThIS ambIgUIty IS resolved by the last paragraph It set out two reqUIrements nurses must satIsfy (1) they were told "to advIse" the employer of "the hours they would be aVailable to work outsIde of theIr regularly scheduled hours", and (2) they were told" to make reasonable efforts to be able to receIve notIce of a need to report and to attend If called m " The relatIOnslup between these two reqUIrements IS not expressly stated m the notIce, but the most plausible mterpretatIOn IS that the second reqUIrement to make "reasonable efforts" apphed only to the hours of aVaIlabIhty specIfied by a nurse m satIsfactIOn of the first reqUIrement I reject the contrary mterpretatIOn because It would obhge a nurse to make "reasonable efforts" outsIde the hours of aVaIlabIhty specIfied by her, thereby rendenng meanmgless the obhgatIOn to specIfy hours of aVaIlabIhty In short, the notIce placed a nurse under no obhgatIOn to be aVailable for work, on short notIce, outsIde of the hours of aVaIlabIhty specIfied by her Dunng the hours of aVaIlabIhty specIfied by a nurse, she was obhged "to make reasonable efforts to be able to receIve notIce of a need to report and to attend If called m " As "reasonable efforts" to achIeve an outcome do not guarantee It wIll be achIeved, the reqUIrement to make such efforts to receIve notIce and to work IS best understood as not obhgmg a nurse to answer every call 14 or to report for duty every tIme she was contacted. The last paragraph reqUIred a nurse to make reasonable efforts to receIve notIce and to work when contacted, but dId not obhge her to ensure she would receIve every call and work every tune a call was receIved. The notIce told nurses to mamtam the sort of general aVaIlabIhty reqUIred m the Jones and Adams cases, but they were not reqUIred to mamtam a state of readmess eqUIvalent to that specIfied m the stand-by or on-call prOVISIOns m the pre-strike collectIve agreement VI There are four OLRB decIsIOns mvolvmg five correctIOnal facIlItIes In the first decIsIOn, Crown zn Rlght o.fOntarzo and OPSEU, [2002] O.L.R.D No 1136, dated Apn119, 2002, the Labour RelatIOns Board addressed the sItuatIOn at Jails m Chatham and Lmdsay ThIS decIsIOn reqUIred a notIce to be provIded to all emergency workers at these two facIlItIes, the notIces relatmg to both Jails are IdentIcal save for the name of the mstItutIOn The Chatham notIce states The Chatham JaIl has encountered dIfficultIes m obtammg emergency workers to replace essentIal servIces workers who are absent from theIr shIft due to Illness or other causes Under the essentIal serVIces agreement emergency workers are reqUlred to fill zn for absent essentzal serVlces workers and to work dunng emergencIes The Umon and the Employer have a Jomt responsibIhty to ensure that emergency workers are aVailable to perfonn the necessary work. The essentIal servIces agreement provIdes that, when notified by a workslte manager, employees who are on the emergency workers lzst, are to report to work as dIrected and to perfonn the emergency work or the work of an absent essentIal servIces worker It lS a vzolatzon of the essentzal serVlces agreement and of the Crown Employees Collectlve Bargaznzng Actfor employees to make themselves unavazlable for call zn as emergency workers Engagzng zn such actzon may 15 expose employees to dlsclplzne as employees or may cause the Board to make certazn orders agaznst OPSEU and or the employees znvolved. All emergency workers are reqUlred to re5,pond to telephone calls from managers requestzng them to come zn to work. Emergency workers must at a mlnzmum 5,peak to the manager who called as soon as the employee lS advlsed that the Jazl has attempted to get zn touch wlth hlm or her If an employee has opted out of the essentIal servIces rotatIOn but IS m the emergency worker hst wIth restncted aVaIlabIhty, such employee IS reqUIred to keep the JaIl notIfied of the tunes when he or she IS aVailable for work. The JaIl IS entItled to assume you wIll be aVailable for the tImes you have specIfied. If any emergency worker has not mdIcated a restnctIOn on Ius or her aVaIlabIhty for legItImate reasons, the JaIl IS entItled to assume that such an employee IS aVailable at any tune for emergency work. (emphasIs added) The same notIce, wIth only the name of the correctIOnal facIhty changed, was subsequently Issued to employees at two other mstItutIOns The unreported decIsIOn reqUInng tlus notIce to be Issued to employees at the Niagara DetentIOn Centre, Crown zn Rlght ofOntarzo and OPSEU, O.L.R.B No 3556-01-M, IS dated Apnl 22, 2002 The decIsIOn reqUInng thIS notIce to be Issued to employees at the HamIlton Wentworth DetentIOn Centre, ('rown zn Rlght o.fOntarzo and OPSEU, [2002] O.L.R.B No 1310, IS dated Apn126, 2002 Paragraphs two through five of the notIce set out the obhgatIOns of most emergency workers at the four sItes The second and fourth paragraphs spoke m general tenns The second said employees desIgnated to provIde emergency servIces were "reqUIred to fill m" for an absent essentIal servIces worker and the fourth said they were not "to make themselves unavailable for call m " The tlurd and fifth paragraphs provIded greater specIficIty The tlurd reqUIred an emergency worker "to report to work" when "notified by a manager" of the need to do so (emphasIs added) The fifth paragraph states an employee must respond to a manager's phone call "as soon as the employee IS advlsed that the JaIl has attempted to get m touch wIth hun or her" (emphasIs added) Like "contacted", 16 the words "notIfied" and "advIsed" connote the successful transmISSIOn of a message from one person to another Accordmgly, the obhgatIOns set out m the notIce would have been met fully by an employee who was out when a manager called, dId not learn of the call untIl several hours later, and then returned It promptly There was no reqUIrement to be aVailable to receIve a call or to answer one wItlun a specIfic tune frame after It had been made by a manager All that was reqUIred of an employee was to answer a call as soon as he or she became aware of It Paragraphs two through five reqUIred emergency workers to mamtam the sort of general aVaIlabIhty dIscussed m the Jones and Adams cases Nonetheless, they were not obhged to respond to every call from the workplace The sIxth paragraph apphed only to a relatIvely small group of emergency workers at the four facIlItIes-I e those who had "opted out of the essentIal servIces rotatIOn" but were "m the emergency worker hst wIth restncted aVaIlabIhty " Such an employee was reqUIred to mfonn the employer of "the tunes when he or she IS aVailable for work." ThIS paragraph goes on to say the employer was "entItled to assume" an employee was "available for the tImes specIfied." If an employee dId not mdIcate a restnctIOn on Ius or her aVaIlabIhty, he or she would be assumed to be "available at any tune" Dunng the hours specIfied by employees m thIS group, or at any tIme m the absence of such specIficatIOn, they were reqUIred to mamtam general aVaIlabIhty However, like the other correctIOnal employees governed by the notIce, they were not obhged to respond to every call from the workplace ThIS analysIs leads me to conclude the notIce dId not reqUIre emergency employees at the four correctIOnal facIlItIes to mamtam a state of readmess eqUIvalent to that specIfied m the prOVISIOns of the collectIve agreement relatmg to stand-by or on-call pay 17 VII A notIce wIth dIfferent wordmg was provIded to employees at the Stratford JaIl pursuant to a Labour RelatIOns Board's decIsIOn, Crown zn Rlght of Ontarzo and OPSEU, [2002] O.L.R.D No 1199, Issued on Apnl 30, 2002 The notIce states The Stratford JaIl has encountered dIfficulty m obtammg emergency workers dunng the present lawful strike Under the EssentIal ServIce Agreement emergency servIce workers are reqUIred to fill m for absent essentIal servIce workers and work dunng emergencIes Accordmg to part C5 of the CondItIons for the 2001-2002 OPS-OPSEU EssentIal ServIces and CollectIve Agreement NegotIatIOns, Umon has an obhgatIOn to cooperate wIth the Employer to obtam a replacement where one IS reqUIred due to the temporary or permanent absence of bargammg umt essentIal or emergency employees The Unzon and the Employer remznd Emergency Servlce Employees that they are not to lmproperly restrzct thelr avazlabllzty for work. To facllztate th,S process, the Unzon and the Employer Jozntly request that all emergency servlce workers advlse the Employer of any tlmes at whlch they are not avazlable The Employer advlses that lt wlll accommodate legltlmate reasons for unavazlabllzty The Unzon and Employer remznd all emergency servlce workers that they are expected to make reasonable efforts to be avazlable to recelve notlce from the Employer or the Unzon of a need to report to fill zn for an absent employee orfor an emergency When notffied o.f an emergency, emergency workers are expected to make reasonable efforts to attend those shffts (emphasIs added) General obhgatIOns were found m paragraph two, saymg emergency workers "are reqUIred to fill m for absent essentIal workers", and m paragraph three, telhng emergency workers "not to Improperly restnct theIr aVaIlabIhty " The fourth paragraph was more specIfic and reqUIred them to make "reasonable efforts" both to receIve a call from the employer and to report for work when called. As reasonable efforts to achIeve an outcome do not guarantee It wIll 18 be achIeved, the reqUIrement to make "reasonable efforts" to receIve notIce and to work dId not obhge correctIOnal workers to answer every call and to work every tune they were called. Like emergency workers at other correctIOnal facIlItIes, those at the Stratford JaIl were reqUIred to mamtam the sort of general aVaIlabIhty dIscussed m the Jones and Adams cases However, the notIce dId not reqUIre them to mamtam a state of readmess eqUIvalent to that specIfied m the prOVISIOns of the collectIve agreement relatmg to stand-by or on-call pay VIII In summary, the answers to the first two questIOns are 1 The desIgnatIOn letters receIved by emergency and essentIal workers dId not reqUIre them to mamtam a state of readmess whIch satIsfied the cntena m the pre-strike collectIve agreement for determmmg ehgibIhty for stand-by or on-call pay 2 The decIsIOns of the labour relatIOns board dId not reqUIre the employees governed by them to mamtam a state of readmess whIch satIsfied the cntena m the pre-strike collectIve agreement for detennmmg ehgibIhty for stand-by or on-call pay GIven these ruhngs, there IS no need to answer the thIrd and fourth questIOns The gnevance IS dIsmIssed Dated at Toronto thIS 26th day of January 2004 ~~ / RIchard Brown VIce-Chair