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HomeMy WebLinkAboutUnion 04-12-20 o ~ o "" c.o ~ ~ o IN THE MATTER OF AN ARBITRATION BE TW E E N: THE CORPORA TION OF THE TOWNSHIP OF ST. CLAIR - and - the "EMPLOYER" ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 123 SOLE ARBITRATOR: Richard L. Verity, Q.C. FOR THE EMPLOYER: Steven F. Wilson Mathews, Dinsdale & Clark Donald E. Lougheed Ronald Kerr Terry Selman FOR THE UNION: Ed J. Holmes Ryder Wright and Blair & Doyle Wayne Bradburn Roger Serratore Marie Thomson HEARING: November 23, 2004 Sarnia, ON the "UNION" Counsel Chief Administrative Officer Director of Public Works Co-ordinator of Operations Counsel Steward, Local 123 Chief Steward, Local 123 Grievance Officer -2- AWARD This matter is a group grievance, dated January 26, 2004 filed by the union on behalf of Roger Serratore, Doug Brooks Jr., Wayne Bradburn and Brian Ruysseveldt, all public works employees of the Township of St. Clair, near Sarnia, Ontario. The Township came into existence on January 1, 2001 as a result of the amalgamation of Moore and Sombra Townships. A first collective agreement was entered into between the parties in October, 2003 for the period December 11, 2001 to September 30, 2005. The group grievance alleges that on Tuesday, January 6,2004, the employees had been improperly paid for performing snow ploughing/salting/sanding duties for approximately one hour prior to the start of their regularly scheduled shift beginning at 7:30 a.m. The grievor's were paid "overtime" pay at time and one-half for the extra hour worked between 6:30 a.m. and 7:30 a.m. The union contends that they should have been paid "call in" pay, i.e. a guaranteed minimum offour hours pay at the regular rate of pay. The regularly scheduled shift on the day in question was from 7:30 a.m. to 4:30 p.m. The issue is said to be one of contract interpretation in a first collective agreement. The issue for determination is whether on the facts before me the employer should have been paid "overtime" or "call in" pay. The parties made reference to two relevant provisions of the collective agreement as follows: .3. 20.13 Call In (a) Public Works Operational Centres and Community, Culture and Recreational staff shall be responsible for maintaining a seniority list for their respective departments for "Call In" purposes. "Call In" shall be called in order of seniority on a continuous rotating basis. In special circumstances, Employees may be skipped to reach the next available person with the required qualifications to complete the specialized work. On the next "Call In", the Employee/s skipped will retain their position on the list and the person selected for the specialized work will be skipped and rotation will continue. The Employee "On Call" is also skipped for the week they are "On Call", but retains their position on the list for future rotation. (b) All Full Time and Regular Part Time Employees shall be paid at the applicable overtime rate in accordance with Article 21.06 Overtime. The minimum pay shall be four (4) hours pay, at the regular rate of pay. 21.06 Overtime (a) When overtime is approved, an employee shall be paid overtime or equivalent time off at the employees option, at the rate of time and one half their regularly hourly rate for any hours worked over seven (7) hours per day, or eight (8) hours per day as per their normal work week. Overtime will be calculated to the nearest one half (%) hour. (2) A full time employee who works on an approved overtime on a Saturday or Sunday or Statutory Holiday, shall be paid, or receive equivalent time off at the employee's option, at the rate of two (2) times their regular hourly rate for all hours worked. It should be noted that 21.06(b) is not relevant but is set out for reasons of completeness. -4- The parties agreed that the arbitrator has jurisdiction to hear and determine the matter. The hearing proceeded with a summary of the facts followed by brief submissions by each counsel, amply supported by numerous arbitral authorities. No oral testimony was called by either party. Further, the parties agreed that past practice would not be a factor in determining the issue. The arguments may be briefly summarized. The union acknowledges that all four grievors were paid "overtime" pay and received the monies for the one hour of extra work on January 6, 2004. The union's principal argument is that on the clear and unambiguous language of Article 20.1 (b), if an employee is called into work for any period outside of his/her regular shift, that employee is entitled to the four hour minimum guarantee, in the absence of any qualifying language as, for example, when a call in is contiguous with a regular shift. By way of remedy, the union seeks a declaration that there has been a violation of Article 20.13(b), and an order that all four grievors be paid for an additional two and one-half hours at the regular rate of pay for January 6. Further, the union seeks an order that the employer will adhere to the proper interpretation of the collective agreement. Reference was made to the following authorities: Re Camp Hill Medical Centre and Nova Scotia Nurses' Union (1994), 40 L.A.C. (4th) 381 (Rigg); Brouillette and Treasury Board (Veterans Affairs) (1991) 19 PSSRB Decisions 41 (Wexler); and -5- Re Ontario Hydro and Ontario Allied Construction Trades Council and International Union of Operating Engineers. Local 793 (1984), 16 L.A.C. (3d) 207 (Tacon). The employer argues that overtime is the proper form of pay for any extra work that is contiguous to a regularly scheduled shift. According to the employer, the timing of a call in is not determinative. The need for a second trip between home and the workplace distinguishes a call in from overtime. The employer maintains that its submission represents a purposive approach which requires a second trip as set out in the majority of awards in this area. In support, the following authorities were referred to: Re Int'l Brotherhood of Electrical Workers. Local 636. and Etobicoke Hydro Electric Com'n (1967), 18 L.A.C. 219 (Arrell); Re International Molders and Allied Workers Union. Local 49 and Webster Manufacturing (London) Ltd. (1971),23 L.A.C. 37 (Weiler); Re Shell Canada Ltd. and Oil. Chemical and Atomic Workers. Local 9-848 (1974), 6 L.A.C. (2d) 422 (O'Shea); Re Hydro-Electric Commission of Town of Mississauga and International Brotherhood of Electrical Workers. Local 636 (1975), 8 L.A.C. (2d) 158 (Ferguson); Re County of Kent and Ontario Public Service Employees' Union (1982),8 L.A.C. (3d) 188 (Swinton); Re City of Toronto and Canadian Union of Public Employees. Local 79 (1983), 12 L.A.C. (3d) 382 (P. C. Picher); Re NTN Bearing MfCl. Canada and United Steelworkers of America. Local 8890 (1995),50 L.A.C. (4th) 289 (Kennedy); Firth Brown Tools Inc. and United Steelworkers of America (Wylie Grievance) (unreported January 19, 1998 (Briggs)); -6- and Canadian Industries Limited. Millhaven Works and Oil. Chemical and Atomic Workers International Union. Local 9-670 (unreported, March 23, 1996 (Little)). From a review of the extensive case law submitted, it is readily apparent that each case falls to be determined by the language of the particular collective agreement. "Call in" payor "call out" payor "call back" pay, as it is variously referred to, is a special form of overtime pay. There would appear to be two distinct lines of arbitral authority in situations where an employee is called in to work after leaving the premises at the end of a regularly scheduled shift. One view represented by Arbitrator Weiler in Webster Manufacturing, supra, emphasizes the need for two trips outside the regularly scheduled shift. In the instant grievance counsel for the employer, Mr. Wilson, refers to Arbitrator Weiler's two trip approach as the majority opinion. The other approach, represented by the rationale of Arbitrator Macintyre in Re Campbell River and District General Hospital and Health 'Services Association (1978), 20 L.A.C. (2d) 425 rejects the two trip approach. The Macintyre approach stands for the proposition that if an employee is called at home to report earlier than his or her regularly scheduled shift he or she is entitled to "call out" pay. The purpose of the call in pay provision has been stated in a number of cases to compensate employees for the inconvenience, social disruption and expense, regardless of how minimal or non-existent, caused by the employer's decision to require employees to return to work outside of the regularly scheduled hours of -7- work. Another purpose of a call in provision is to discourage employers from resorting to a call in situation which would not justify the cost involved. As Arbitrator Tacon did in the Ontario Hydro case, it is useful to set out the competing rationale of Arbitrators Weiler and Maclntrye. As Arbitrator Tacon stated in Re Ontario Hydro at p. 211 : The notion of an "extra trip" as essential to differentiating call-in from overtime was set out in Webster ManufacturinQ, supra, at pp. 40-1. It is useful to review the arbitrator's reasoning at this point: In the absence of an explicit definition of a call-in or call-back, we would accept the interpretation in the first group of cases of the objectives of such a guaranteed minimum, and agree that the provision should be applied in this light. What the provision does is to guarantee an employee a specified amount of minimum earnings in certain overtime situations, whether the company has enough work for this purpose or not. The reason why the parties negotiate this minimum is the recognition of the fact that being required to leave home and go to work usually involves a significant disruption and expense for an employee and it is only fair that he should be guaranteed adequate compensation. It is also designed to ensure that the company, which gets the benefit of the employee being called to work at an irregular time, be encouraged to make use of its powers only when this is important enough to warrant the costs it will incur. It is vital to recognize that these guaranteed earnings, on overtime work outside regular hours, are not paid the employees for overtime that follows continuously from the end of their shift. This is because the reason for the guarantee - the extra trip to and from work - did not obtain in 'this case. It is considered adequate compensation for the extra work outside the regular hours that the employee be paid the premium rate for the time actually worked. On this reasoning, an employee who is asked to come in to work overtime before and continuously up to the start of his shift should also receive only the overtime rate, and not the guaranteed minimum, because he has not been asked to make the extra trip to and from work. If this reasoning be valid. as we believe it is, then the essential characteristic of a call- back is not that the employee is somewhere else at the time that he is asked to return to work but, rather, that his overtime work actually begins at a time when it is necessary for him to make an extra trip to and from work. -8- Arbitrator Tacon goes on to refer to the competing line of authority as developed by Arbitrator Macintyre in the Campbell River case, supra, where he states at pp. 430-1 : ...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 instructions 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 .... I do not think that the character of a call-out can suddenly change to overtime merely because the shift starts before the work is completed, at least where the employee has not been told in advance. The lack of a separate trip cannot be determinative, since if the employee finishes just before shift, and decides not to go home, there can be no doubt that she is entitled to the guaranteed amount, and yet she still will not have had the extra trip. It does seem to me that it should make no difference whether the emergency work continues to the shift or terminates five minutes before. It is still a call-out, and carries the consequences. Like Arbitrator Tacon in the Ontario Hydro case, on the language ofthe instant collective agreement, I prefer the reasoning in Campbell River to that of Webster Manufacturing where, as here, the language does not set out any conditions for the entitlement to call in pay. Therefore, I read Article 20.13(b) as providing a minimum guarantee of four hours at the regular rate of pay in circumstances where an employee is called in to work outside of his regularly scheduled shift, whether or not such work is contiguous to that scheduled shift. -9- For all of the aforesaid reasons, there shall be a declaration that, on the facts before me, the employer violated the requirements of Article 20.13(b) on January 6, 2004. Since each of the individual grievors received one and one-half hours pay based on "overtime" performed on January 6, 2004, each grievor shall be paid an additional two and one-half hours pay to receive the full benefit of the call in pay provision. Further, I would order that the employer adhere to this interpretation for the remainder of the term of the current collective agreement. DATED at Brantford, Ontario, this 20th day of December, 2004. RICHARD L. VERITY SOLE ARBITRATOR 9