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HomeMy WebLinkAboutFacette 02-10-01C13 C BETWEEN: WAW Y 20 I 73 IN THE MATTER OF AN ARBITRATION CANADIAN BLOOD SERVICES REC,�I E O C r z 3 2002 I OatpFARB NN (the "Employer") ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 477 (the "Union") AND IN THE MATTER OF THE GRIEVANCE: OF RICHARD FACETTE PAULA KNOPF — SOLE ARBITRATOR APPEARANCES For the Employer J. D. Sharp, Counsel Mary Mainella, Manager Administration For the Union Boris Bohuslawsky, Counsel Ken Pierce, Chief Steward Hearing of this matter was held in Ottawa, Ontario on September 12, 2002 AWARD This is a grievance alleging the violation of the "call-back" provisions of the collective agreement. The parties have been able to reach an Agreed Statement of Fact covering almost all the factual issues of the case. 1. Both parties agree that the arbitrator has jurisdiction and is properly seized of the above -noted grievance .... The grievance dated March 20, 2002, alleg[es] that the employer is required to pay the grievor call-back pay as per Article 12.06 of the Collective Agreement. The employer denied the grievance for the reasons set out in the Step 2 grievance reply... 2. The parties are governed by a Collective Agreement effective from April 1, 2001 to March 31, 2005.... 3. Canadian Blood Services operates Canada's blood supply, from the point of initial collection through to final distribution. 4. The grievor, Mr. Richard Facette, is a Transport Driver responsible for operating a vehicle which picks up and transports blood and blood products from various collection sites within Eastern Ontario or delivers blood or blood products to local area Hospitals. 5. The grievor was scheduled to start his regular shift on Monday, March 18. 2002 at 6:45 a.m.... The grievor's schedule for the weeks of March 11-15 and 18-22, 2002 respectively [was filed as an exhibit]. 6. The grievor called in sick and did not report for his scheduled shift on Friday, March 15, 2002. No medical certificate was produced by the grievor nor was one requested by the Employer. 7. [A vehicle which was required for service on March 18, 2000] was sent to the Surgeon's Truck Centre in Ottawa on March 14, 2002, with a promised return date to the employer of March 15, 2002 ►N 8. On March 15, 2002, the employer was contacted by Surgenor's and advised that the vehicle would not be ready until March 16, 2002. 9. The grievor was contacted by telephone on March 15, 2002 and advised that he should report for work at 6:15 a.m. on March 18, 2002 and further, that he should report directly to Surgenor's Truck Centre to pick up the vehicle. 10. The grievor did pick up the vehicle as requested on March 18, 2002 and completed his scheduled shift. 11. The grievor requested call-back pay pursuant to Article 12.06 of the Collective Agreement and this payment was denied. There was a factual dispute between the parties about the vehicle which was to be assigned to the grievor on March 18. 'The Employer asserted that the truck the grievor was sent to pick up on March 18 was the truck the grievor was scheduled to operate on that date. The grievor's evidence was that he was scheduled to operate another vehicle. While this seemed to be a matter of importance to the grievor's presentation of the case, the ultimate decision will not turn on it because the grievor's evidence included a concession that nothing in the collective agreement hindered the Employer from assigning him to one vehicle or another. Further, the grievor asserted that someone else could have been sent to pick up the truck on March 18 without incurring expense to the Employer or without inconveniencing the grievor. This evidence was not contradicted by any evidence from the Employer. However, the grievor candidly conceded that his supervisor has the right to decide who will pick up a vehicle. Vehicles are commonly out for repairs and have to be picked up. The supervisor assigns someone to do this, or he does it himself. Therefore, that assignment to the grievor on that day C� does not contravene the collective agreement or affect the merits of the call back grievance. Finally, the Union sought to introduce "past practice" evidence through the grievor. The purpose of this evidence was to support the Union's alternative submissions regarding "ambiguity" in the collective agreement. The Employer objected to this evidence asserting that the collective agreement was clear and unambiguous thereby rendering the introduction of past practice evidence irrelevant. I reserved on the question of ambiguity and the Union introduced the evidence on the promise that it would be brief. The grievor's evidence regarding past practice was that on one occasion, within the last two to four years, he was called at home on a Saturday afternoon when he was not working. He was asked to report to work the next day, being Sunday, to pick up some dry ice and deliver it to the Blood Centre. He was not scheduled to work until Monday. He did the pickup and delivery on the Sunday. This took less than two hours. He was paid for four hours of work in accordance with his understanding of the call-back pay article. He also gave general evidence about other classifications and other people working in the laboratory when, on weekends, are paid at 1'/z times their hourly rate or for four hours whichever is the greater when they receive a call prior to three hours before their scheduled shift. In cross-examination he conceded that the laboratory staff are on call. When they are called in on the weekends, they do not continue with a regular shift. He could not give any specific examples other than his own personal experience mentioned above. The relevant provisions of the collective agreement are as follows: 4.02 The parties further acknowledge that it is the exclusive function of the Employer, subject to the provisions of this Agreement, to manage and control its operations, and without limiting the generality of the foregoing, to: c) manage, control, continue, discontinue in whole or in part the Employer's operations, and without restricting the generality of the foregoing, to determine the number of employees, schedule of activities, kinds and locations of machines and processes to be used and the scheduling and conducting of clinics and deliveries and the determination of their locations, in accordance with the function of the Employer. ARTICLE 12 — HOURS OF WORK 12.01 a) Work Hours ii) A full-time Clinic Assistant, Phlebotomist, Driver, Laboratory Assistant, and Data Entry Clerk shall work an average of 75 hours over ai two week period. 12.04 Overtime a) The Employer shall have the right to schedule overtime when such is required, provided, however, that the Employer shall give notice of overtime as far in advance as is practicable. 12.06 Call Back a) A full-time or temporary full-time employee who is contacted when off the premises of tie Employer and is required by the Employer to report for work prior to her next scheduled starting time, such employee shall be paid a premium at the rate of time and one half (1.5) of her basic hourly rate for all hours worked or for four (4) hours at straight time, whichever is greater. Hours worked as a result of the article shall not be included in the averaging period. The minimum guarantee will not be applicable if the employee is called in to work within three (3) hours of her scheduled starting time. 12.08 a) Work Schedules Full -Time i) Work schedules for employees on the 75 hour averaging shall be dated and posted four 1;4) weeks in advance. The parties understand that changes may be made in the case of an emergency, a significant staff shortage or where unusual or unforeseen circumstances exist. ii) Where less than twelve (12) hours' cancellation notice is given to an employee, time and one-half (1'/2) of the employee's regular straight time; hourly rate will be paid for all hours cancelled commencing on the next scheduled shift, except when a shift change occurs due to conditions beyond the control of the Centre. iii) Any two (2) employees, in the same classification, may exchange shifts with the prior approval of their supervisor, provided that the Employer shall not incur any additional overtime of premium costs over and above those which would have been incurred had the exchange not taken place. The Submissions of the Parties Counsel for the Union asked the arbitrator to take a "purposive approach" to the interpretation of the call-back provisions of the collective agreement and to keep in mind the nature of the enterprise of the Canadian Blood Services. It was argued that the collective agreement between these parties tries to assure some measure of predictability in scheduling for the employees as well as flexibility for the Employer. The Union emphasized the provisions in Article 12.04 which give employees the right to notice as far in advance as is practicable for overtime and gives four weeks advance notice of shifts. The Union concedes that the collective agreement also recognizes that there is no complete assurance of schedules and points to Article 12.01(c) and 12.08(b)(ii). The Union argues that the collective agreement constitutes a bargain between the parties whereby the employees have 13 as much knowledge as possible in advance of their schedules yet the Employer is insulated from liability in certain specified circumstances. In this context, it was said that Article 12.06 sets out only two criteria for the receipt of call-back pay; 1. the employee be contacted when off premises and, 2. the employee be required to report to work prior to his/her next scheduled starting time. The Union argues that the grievor meets these criteria because he was contacted on Friday when off premises and asked to start half an hour prior to his scheduled start time on Monday. Accordingly, it is argued that the grievor has met the only two criteria necessary for the receipt of call-back pay under Article 12.06. Counsel for the Union properly conceded that the Employer had the right to ask the grievor to attend work half an hour prior to his scheduled shift. However, the Union argues that, having contacted the grievor off premises, in these circumstances, the grievor is entitled to the benefit of Article 12.06. The Union submits that the case law on call-back pay focuses on the "inconvenience to employees as the dominant feature." It was argued that in this case, the inconvenience to the grievor was the fact that he was contacted at home when he was sick and asked to attend work early on the following Monday. It was said that this is the kind of inconvenience that the case law recognizes. Further, it was suggested that the fact that other employees could have been asked to do the work with less inconvenience supports this position. In the alternative, the Union argues that the last sentence of Article 12.06(a) is ambiguous. In particular, the Union points to the phrase "called into work" and argues that that phrase must mean actually receives the call within three hours of the scheduled starting time. The Union submits that the last sentence means that the employee has to be actually contacted within three hours of the scheduled start in order for the Employer to be relieved of liability for the call-back pay. It was said that the grievor's evidence demonstrates that the Employer has applied this provision consistently with the Union's understanding. In support of its arguments, the Union presented the following cases: Ontario Hydro and Ontario Allied Construction Trades Council, and International Union of Operating Engineers, Local 793 (1984), 16 L.A.C. (2d) 207 (Tacon), Camp Hill Medical Centre and Nova Scotia Nurses' Union (1994), 40 L.A.C. (41) 381 (Rigg), Toronto Police Services Board and Toronto Police Association (2000), 96 L.A.C. (4th) 431 (Marcotte) and Ontario Public Service Employees Union and The Crown in Right of Ontario, GSB File # 1282/97, decision dated November 10, 1999, unreported (Briggs). Counsel for the Employer argued that the language of Article 12.06 in its entirety is clear and unambiguous. It is conceded that the language requires call- back pay to be paid when the Employer contacts an employee off premises and when that employee is required to work prior to the next scheduled start time. However, this situation was distinguished from the situation when the shift is changed to an early start as the Employer is allowed to do under Article 12.08(a)(i). The Employer argues that the facts of this case establish that there were unusual or unforeseen circumstances entitling the Employer to change the grievor's work schedule by having his shift start half an hour earlier. The unusual situation was said to be the need to pick up the vehicle at the repair shop because it was not ready on the Friday as was expected. However, the primary focus of the Employer's argument rests on the last sentence of Article 12.06(a). It was stressed that the last sentence is an J exception to the call back pay requirement. The Employer stresses that the words do not say that the employee has to be phoned or actually contacted within three hours of the scheduled starting time as the Union alleges. The Employer stresses that the collective agreement clearly refers to the time that the work begins, rather than the time the call is made or received. Accordingly, the Employer argues that the fact that the grievor was contacted on March 15 to report thirty minutes earlier on March 18 is well within the three-hour exemption contained in the last sentence of Article 12.06. The Employer also argued that if the Union succeeds in this grievance, this would effectively negate management's rights to change schedules under Article 12.08(a)(i). Further, the Employer argues that the Union's interpretation of the last sentence would result in an absurdity for both parties. It would mean that the Employer would be penalized for giving as much notice as it did in this case and employees would be greatly inconvenienced because management would be allowed to give three hours or less notice of an expectation to report early to work. The Company made reference to the following cases for the principles contained therein. Counsel conceded that neither the facts nor the collective agreements contained in these cases are identical to the ones at hand. However, it was submitted that the principles would be helpful for the analysis. County of Kent and Ontario Public Service Employees' Union (1982), 8 L.A.C. (3d) 188 (Swinton), International Molders and Allied Workers Union, Local 49 and Webster Manufacturing (London) Ltd. (1971), 23 L.A.C. 37 (Weiler), Camp Hill Medical Centre and Nova Scotia Nurses' Union (1994), 40 L.A.C. (4") 381 (Rigg), Campbell River and District General Hospital and Health Sciences Association (1978), 20 L.A.C. (2d) 425 (Maclntyre), Ontario Hydro and Ontario Allied Construction Trades Council and International Union of Operating Engineers, Local 793 (1984) 16 L.A.C. (3d) 207 (Tacon), and Pacific Press Ltd. and Vancouver Typographical W Union, :Local 226 (1983), 13 L.A.C. (3d) 238 (McColl). The Employer also made reference to Webster Encyclopedic Dictionary and the American Heritage Dictionary with regard to their definitions of the word "unusual" to argue that the Employer's actions were justified under Article 12.08(a)(i) of the collective agreement. Finally, it was argued that the past practice evidence is irrelevant because no ambiguity exists. In the alternative, it was argued that the evidence falls short of establishing that there was a repeated or customary behaviour that is consistent enough to aid in the interpretation of a provision of the collective agreement as is required in cases such as Vancouver Shipyards and IBEW, Local 213 (1999), 80 L.A.C. (4th) 207 (McPhillips). The Employer argued that the "past practice" evidence offered by the Union does not support its argument because the one factual situation cited by the grievor shows that he was paid in accordance with the interpretation that the Employer is asserting. Further, the fact situation is entirely different from the one at hand because the grievor was asked to work on a scheduled day off, did not continue to work for a full shift and then reported to work the following day. In reply, counsel for the Union submitted that the grievor's evidence establishes that vehicle repairs are a common occurrence in this enterprise. Therefore, it was argued that Article 12.08(a) does not apply. Secondly, it was submitted that the principles in the call-back pay cases stress the need for adequate notice in a call back situation. Therefore, it was argued that the circumstances of the grievor being contacted at home while away sick, constitute a type of inconvenience akin to lack of proper notice. Finally, counsel for the Union addressed the Employer's suggestion that a decision in the Union's favour would lead to an "absurdity". The Union argued that the task of the arbitrator is to interpret the collective agreement and not to 10 substitute his/her own judgment as to how a collective agreement ought to have been crafted. The Decision As can be seen from the overlapping of cases cited by counsel for both parties, they agree about the general principles applicable to call back pay. Those principles are set out articulately in the Ontario Hydro case, supra, at pages 211 and 213. It was not disputed that the underlying rationale of the call-in pay provision is to compensate employees for the inconvenience, disruption and expense caused by the employer's decision to require an employee to report for work at other than the normal time, although in any particular instance the inconvenience, disruption and expense may be minimal or even non-existent. Moreover, it was also not disputed that the guarantee of a minimum four hours' work at the appropriate premium rate would militate against frivolous call -ins since an employee would not exercise his right to call in employees unless there was sufficient work available to justify the costs implicit in the call-in provision. This board prefers the reasoning in Campbell River to that in Webster Manufacturing where, as here, the language in the collective agreement does not set any condition for the entitlement to call back beyond a call in "outside of his normal hours of work". The board would distinguish work under the call-in article from overtime scheduled before (but contiguous with) the regular shift on the basis of the timing of the notice. That is, where the employee is called in from home and must report for work without prior warning, the "work" performed is more properly characterized as call-in, rather than overtime, In addition, the Camp Hill Medical Centre case, supra, deals with the concept of extra trips and contiguous shifts as they relate to call-back provisions. 11 The case points out that each collective agreement will be different, but sets out some general guiding principles. If the call-back provision may apply either when an employee is notified at work of the need to make an extra trip or when the employee is called at home for work which becomes contiguous with the employee's regular shift, does this mean that the provision always applies? The answer will depend on the language of the provision, of course, but the purposive interpretation suggests that at least one of the two purposes, compensation for insufficient notice or compensation for an extra trip, must exist before the call- back provisions will be found to apply. So, it' an employee is given sufficient notice that she will be required to come to work sometime after one of her regular shifts but before the commencement of the next shift and that work becomes contiguous with her next shift, she would not be entitled to the extra compensation provided by the call-back provision. This is fair, because the employee will not incur the expense of an extra trip nor the disruption of short notice; the employee will have had sufficient time to make arrangements to lessen the disruption caused by the requirement to work at a time other than her usual shift and to minimize the expense of transportation at an irregular time. Compensation for those lower expenses and that lesser disruption is one of the purposes of regular overtime pay. If the purpose of call-back pay is to compensate for the disruption and expense caused by calling an employee to work without sufficient notice, one may inquire what sort of notice might be sufficient notice to avoid the application of art. 7.13. That issue was not raised by the parties, probably because it was clear that the grievor was called back to work on very short notice (called at 2110 to report immediately and reported at 2150, a space of only 40 minutes). It would, therefore, be presumptuous of me to attempt to answer that question in the absence of a reed situation and of argument by the parties. I do, however, note that some guidance might be taken from other cases, such as the suggestion by Professor Macintyre in Campbell River, above, that if the instruction to report had been given to the employee the previous day, the call back provision would not have applied. 12 The Campbell River decision, supra, referenced above is as follows: I think we can safely say that if the employee happens to have come in early, and is asked to start early, he gets only overtime, and if he is given the instruction the previous day, it is also not a call -out.. But if he is at home, and is specially called, there is some support for the view that he should get the premium and also the regular pay. This seems eminently reasonable where the call -out is several hours in advance of the normal shift, and becomes more and more anomalous as it gets closer to that shift. But any automatic provision has its anomalies. It is quite true that there is not the inconvenience of a separate trip. It is further true that the "social inconvenience" is no different whether we call it overtime or call -out. But the particular feature of this case is that the employee is at home when called, and must leave home early without prior warning These cases are helpful in that they direct arbitrators to look closely at the words of the collective agreement. They also recognize that call-in or call-back provisions are designed to compensate employees for inconvenience, disruption and expenses incurred when an employer requires an employee to report to work other than at the normal time. Sometimes that inconvenience can be minimal but, if the inconvenience is the type contemplated by the collective agreement, the call-back premium will be triggered. Further, while "two -trips" or lack of continuity in shifts is often a feature of call-back provisions, this is not always the case. Again, liability for the premium will depend on the wording of the collective agreement. Finally, the amount of notice is generally considered to be a significant factor in determining whether the call-back situation has in fact occurred. Counsel for both parties recognize that none of the cases that have been cited are determinative because they are based on different facts and collective agreements. Further, all the cases are clear that the result is governed by the language chosen by the parties in their respective collective agreements. The cases 13 simply help us all understand the labour relations principles behind call-back provisions. The undisputed facts in this case are clear. The grievor was asked on a Friday to report to work thirty minutes prior to his scheduled Monday morning shift. It may be that others could have been asked. But his own evidence was that it is up to the supervisor to choose who is to accomplish such a task and nothing in the collective agreement made the request improper. Therefore, that leaves us with the clear evidence that he was given three days' notice to report to work thirty minutes before his originally scheduled shift. Does that attract the call-back provisions under Article 12.06(a) of this collective agreement? For a variety of reasons, it must be concluded that the grievance must be dismissed. The collective agreement is clear and unambiguous. Article 12.06(a) governs call-back pay. The first sentence sets out the rate and the conditions for call- back pay. On the face of that sentence, the grievor would have succeeded because indeed, he was contacted "off the premises" and was required to "report to work prior to [his] next scheduled start time." The fact that he was off work sick is completely irrelevant. However, the last sentence of that article must also be considered. That sentence excepts the requirement to pay call-back pay "if the employee is called into work within three hours of his scheduled start time." If, as the Union asserts, "called into work" means that the call is actually made or received within three hours of the scheduled start of shift, that would mean that the exception is only triggered if the call was received or made within three hours of the scheduled starting time. That would create a result that would cause operational inconvenience and disruption for employees as well as allowing the Employer to call in employees on very short notice without incurring any liability. 14 If, as both parties assert, the purpose of call-in pay is to compensate for disruption, lack of notice and the usual situation when two trips are required, the plain meaning of Article 12.06 leads to the conclusion that the last sentence simply meant that call-back premiums will not be required to be paid if the employee is required to work within three hours of his/her scheduled starting time. This would mean a call received to start a shift up to three hours earlier than scheduled would not attract call- in pay. There are other provisions of the collective agreement that may be triggered, such as overtime. But the last sentence of Article 12.06 exempts this type of call from call-back premiums. The Employer's interpretation of Article 12.06(a) is consistent with a reading of the collective agreement as a whole. Article 12.01 (ii) sets work hours for full-time employees as simply an average of 75 hours over two weeks. Article 12.04(a) gives the Employer the right to schedule overtime and Article 12.08(a)(i) recognizes the importance of four weeks' notice of schedules. The agreement also allows for schedule changes in specific circumstances. The parties have negotiated protections for both employees and the Employer that allow the Employer to call back an employee earlier than his/her scheduled shift in Article 12.08(ii). This gives employees the right to have a work schedule posted four weeks in advance. However, it also articulates the parties' understanding that schedules can be changed in circumstances that include "unusual or unforeseen circumstances." When those provisions are read together, it can be seen that while the parties strive for predictability and as much notice as possible for employees, there is also a significant amount of flexibility and adaptability allowed as is appropriate for the nature of this enterprise. Therefore, while it may appear odd in some contexts to contemplate the possibility of a start time being brought forward by even up to three 15 hours, the collective agreement foresees and allows for this in cases such as emergencies, staff shortages or unusual or unforeseen circumstances. On the agreed facts of this case, it can be concluded that unusual circumstances existed on March 15. 1 accept the Union's position that repairs are commonly required for the vehicles. However, the evidence also establishes that on this particular occasion, the repairs were expected to be completed on March 15. But on that day, it was discovered that the vehicle would not be ready until March 16. This had not been foreseen and amounted to an "unusual" circumstance requiring someone to pick up the vehicle so it could be available for duty at the start of the day on Monday, March 18. This was a different situation from the norm. This is sufficient to satisfy the requirements of Article 12.08(i)(a) that entitled the Employer to make a change in someone's schedule. There was nothing improper under the collective agreement in the Employer designating the grievor as the one whose schedule would be altered on the Monday morning. Therefore, the E=mployer was entitled under Article 12.08(a)(i) to alter the grievor's schedule for March 18 and require him to report a half an hour early. Because the collective agreement allows for this type of circumstance, it must be distinguished from a call-back premium under Article 12.06(a). The grievor's evidence about "past practice" does not help the Union's case. Instead, it supports the interpretation set out above. The grievor's only evidence about any other specific situation was about when he received call-back pay for work on a Sunday even though he was not scheduled to work until the Monday. Unlike the situation in this grievance, that call-back to work required him to report on a day when he was not scheduled to work. He had to make an extra trip and his day off was disrupted. Nor did the extra work run contiguously with a regularly scheduled shift. None of those factors came into play in the facts surrounding this grievance. Further, the payment of call-back pay was completely 16 consistent with the interpretation based on when the extra work was done, not when the call was received. Even if I am wrong about this, the past practice evidence does not support the Union's evidence. To aid in interpretation, evidence must show a consistent pattern of behaviour or conduct that helps with the resolution of the ambiguity in the words of a collective agreement. See Vancouver Shipyards and IBEW, Local 213, supra. Through no fault of the grievor, his evidence falls far short of establishing a clear or consistent pattern of conduct. His one specific example was factually very different from the circumstances of this grievance. The other situations cited were either too general or dealt with employees in different circumstances. That takes us back to the plain meaning of the words. Further, or in the alternative, I can find no ambiguity in these words. Reading the collective agreement as a whole and Article 12.06 in particular, it must be concluded that the minimum guarantee of call-back pay is not triggered if an employee is called into work within three hours of the scheduled start time. In the case at hand, the grievor was called to start work within three hours of his scheduled start. Alternatively, his scheduled shift was legitimately changed pursuant to Article 12.08(a)(i) because of the unusual need to have a vehicle picked up before his originally scheduled start time. If the purpose of call-back pay in general is considered, he was not required to make two trips, the work was contiguous to his shift and he was not significantly inconvenienced. When the specific provisions of this collective agreement are read as a whole and applied to the 17 facts, it cannot be concluded that Article 12.06 was intended to cover the situation that occurred in this case. For all these reasons, the grievance is dismissed. Dated at Toronto, Ontario this 1 st day of October, 2002 asp