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HomeMy WebLinkAboutUnion 11-04-20 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 331 -AND- ONTARIO SHORES CENTRE FOR MENTAL HEALTH SCIENCES UNION/POLICY GRIEVANCE AWARD Arbitrator: Laura Trachuk For Ontario Public Service Employees Union, Local 331 : Ryan White Yvonne Lewis Karen Preston Jonathan Leung Patti Lang Sharon NaipauJ For Ontario Shores Centre for Mental Health Sciences: Craig Rix Robert Blewett Sheryl Bernard Roxanne Cain Diane Rossi The arbitration of this matter took place in Ajax and Oshawa on June 8, July 20, November 22 and 29, 2010, February 11 and March 21,2011. I C02819Sll1 AWARD The Ontario Public Service Employees Union ("union") has filed a grievance alleging that the way Ontario Shores Centre for Mental Health Sciences ("Centre") has been scheduling part-time employees in the registered nurse and paramedical/professional bargaining units is a violation of the collective agreement. Facts Much of the evidence introduced in the grievance hearing related to an estoppel argument that is no longer available to the union since the parties have negotiated a new collective agreement. The following facts provide background and/or are relevant to the remaining collective agreement interpretation issue. The Centre came into existence in March 2006 as a result of the divestment of the Whitby Mental Health Centre ("WMHC") from the Ontario government. The Centre voluntarily recognized the union, and the parties operated under a divestment agreement which maintained the status quo until a new collective agreement could be negotiated. Bargaining for the first collective agreement concluded in January 2008. The WMHC and the union had operated under a provincial collective agreement pursuant to which employees were designated as classified full-time, regular part~time or unclassified. After the divestment, the Centre and the union agreed that the unclassified staff would have the option of becoming either part-time or casual employees. The parties agreed to include the following language in the collective agreement: ARTICLE 3 EMPLOYEE DEFINITIONS 3.03 Part-Time A Part-time employee is an employee who is regularly scheduled for not more than 22.5 hours per week. A part-time employee is defined as an employee who makes a commitment to the Centre to be available for work on a predetermined basis as required by the Centre. Part-time (PT) employees are not guaranteed a specific number of shifts per pay period or per scheduling period. Prior to the utilization of Casual staff, Part-time employees that are normally scheduled on that uniVdepartment will be given the option of being scheduled for additional shifts over and above their normal commitment in the event of illnesses, vacations, emergencies and other periods of staff shortages. 3.04 Casual A Casual employee is defined as an employee whose work is not normally scheduled on a predetermined basis but who may be prescheduled or called in on a relief basis only to fill in for illness, vacations, emergencies (C0231983.1! ~2- and other periods of staff shortages once it has been determined that no Part-time employees normally scheduled on that unit/department have agreed to work the required number of shifts available. Once a Casual employee has been scheduled or called in under these provisions a Part- time employee may not displace them. Casual employees who have not made themselves available for a six-(6) month calendar period may be terminated from employment from the Centre. The unclassified employees were required to make their election to part~time or casual status by August 2008. The employees who were formerly designated as "regular part-time" were grandfathered under a separate Letter of Understanding. The parties also included Article 37.06(a) in the collective agreement which requires that the schedule be posted four weeks in advance. Prior to divestment, the WMHC schedules were prepared by clerks on each individual unit. Unclassified employees were scheduled for up to 24 hours. After the schedule was posted, they would update their availability and would then be contacted by the unit clerks and asked whether they wanted other shifts. That practice continued while the parties were negotiating the new collective agreement. After the divestment, the Centre decided to implement central scheduling and upgraded its existing Schedule Pro (SPRO) software to accomplish that. The Centre met with the union and explained how the central scheduling process would work. Employees were trained on how to use SPRO. It was somewhat counter intuitive as it required employees to input the dates on which they were not available. The first centrally produced schedule went up on September 8, 2008 to take effect on October 6, 2008. That was also the first schedule which included the newly designated part-time and casual employees. A number of part-time employees were scheduled for more than 22.5 hours. The union complained to the Centre about that. It took the position that part-time employees could only be scheduled for 22.5 hours (three 7.5 hour shifts) on the schedule that went up four weeks in advance. It said that the Centre had to call and ask part-time employees if they could work additional shifts after the schedule was posted. The Centre agreed to try the system the union wanted it to use for the schedule posted in January to take effect on February 9, 2009. That schedule was, therefore, posted with unfilled shifts that the Centre then had to fill by calling first part-time and then casual employees. It decided that system would not work and informed the union at a meeting on February 19, 2009, that it would go back to scheduling some part-time employees for more than 22.5 hours. Roxanne Caine, the Manager of the Centralized Staffing Scheduling Office (CSSO), testified that she had received complaints from employees and unit managers that the schedule was posted with gaps in it. She also said that her department had to call employees to fill in the holes in the schedule at the same time as it had to I C028 1933. I I -3- make the usual calls to fill in short notice or unplanned absences or to supplement staff to respond to increased acuity on certain units, The Centre makes over 9,000 calls per month to staff short notice or unplanned absences. Ms. Caine concluded that posting a schedule with gaps in it increased the risk of a unit running without the required number of staff. The parties continued to discuss the problem and exchanged views on their interpretation of the collective agreement. On April 1, 2009, the Centre sent an email to the union representatives advising that it would be issuing a form to the part-time staff asking them to indicate if they wanted to work more than their normal commitment and, if so, how many extra shifts. If they did not return the form they would only be prescheduled for 22,5 hours. On April 20 the Centre circulated a form which provided as follows: Article 3,03 of the OPSEU Collective Agreement defines part time as: A ParHime employee is an employee who is regularly scheduled for not more than 22,5 hours per week. A part-time employee is defined as an employee who makes a commitment to the Centre to be available for work on a predetermined basis as required by the Centre. Part-time (PT) employees are not guaranteed a specific number of shifts per pay period or per scheduling period, Prior to the utilization of Casual staff, Part-time employees that are normally scheduled on that unit/department will be given the option of being scheduled for additional shifts over and above their normal commitment in the event of illnesses, vacations, emergencies and other periods of staff shortages. Part-time shifts are assigned by CSSO based in availability and seniority. Where it is required in their unit, part-time staff should be available for all shifts, weekends and statutory holidays. The Centre will attempt to be as equitable as possible in both the pre-scheduling and utilization of part-time staff for planned and unplanned absences but as per the definition above there are no guarantees of hours for either of these two designations. The Centre would like to know if you would prefer to be pre~ scheduled (before the schedule is posted) for additional shifts over and above 22.5 hours per week based on your unavailability indicated in Spro. Please sign below to indicate your selection and return to Human Resources no later than 4:00 p.m., May 1, 2009. If you fail to return this document by the deadline specified, you will be pre-scheduled based on your unavailability in Spro. 1C1I2S19SJ! ) w4- Yes, I prefer to be pre-scheduled for additional shifts on the master schedule over and above 22.5 hours per week based on my unavailability indicated in Spro. NOl I do not want to be prewscheduled for additional shifts on the Master schedule over and above 22.5 hours per week. This document will remain in effect until such time as new information is submitted in writing to Human Resources. {emphasis in original] On April 23, 2009, the union issued a memo telling employees not to fill out the form. It advised employees that it considered the Centre's initiative to be a violation of the collective agreement. Through SPRO and its successor MediTech, employees can update their availability to work both before and after the schedule is posted except for a short period when they are locked out while it is being prepared. The union filed this grievance on April 7, 2009. It stated: We grieve the Employer is in violation of Articles 3.03 and 5 but not exclusively of the Collective Agreement. Violation of past practice, post Oct. 6/08 and further violation with implementation/plan announced to Union April/09, plan which violates 5(c). The remedy requested was: Employer will cease and desist with plan announced/communicated April/09. employer will adhere to collective agreement. Any other settlement deemed to make the grievor whole. During the period in which the central scheduling system was being implemented by the CSSO, the human resources department was working on scheduling guidelines. The draft guidelines which were circulated between October 6,2008 and June 2009 stated: Part time -Pre-scheduled not more than 22.5 hours per week on a regular basis. Additional hours can be added for sick leavel vacation leave and other absences on a temporary basis once the schedule is posted Casual -Not normally scheduled on a predetermined basis. -May be scheduled or called in on a relief basis only if no part time employees are available at straight time. {C02819HII -5~ The draft scheduling guidelines were circulated to the scheduling department and the union, CSSO did not schedule according to the guidelines set out above except for the February 2009 schedule in which it agreed to try to schedule the way the union wanted. The draft guidelines were not changed until after the grievance was filed. The person who prepared the draft guidelines is no longer working with the Centre and did not testify. Eventually, the Centre switched to a different central sCheduling system, MediTech, which permitted employees to input the dates on which they were available, not the dates they were not available. The union alleged that it received complaints from employees about being scheduled for more than 22.5 hours. The Centre claimed that it got complaints when it did not do that. No particulars or documents were provided with respect to either allegation. However, some complaints could be expected whichever way the Centre scheduled as some employees would be negatively affected if they were scheduled more than 22.5 hours and others if they were not scheduled for more than 22.5 hours. There does not appear to be a dispute that the Centre has suffered from staffing shortages and that the union has complained that staffing shortages are a safety issue. There is no issue between the parties about part-time employees working more than 22.5 hours per week. The dispute is about whether they can be scheduled for more than 22.5 hours on the schedule posted four weeks in advance. There is also no claim that the part-time employees are being scheduled for reasons other than those outlined in Article 3.03. The parties have recently negotiated a new collective agreement which contains the same language as set out in Article 3.03 and 3.04. They have agreed that their dispute about that language will be determined by this decision. Other Relevant Collective Agreement Provisions ARTICLE 5 MANAGEMENT RIGHTS 5.01 The Union recognizes that the management of the operations and the direction of the employees are fixed exclusively with the Centre and shall remain solely with the Centre and without restricting the generality of the foregoing it is the exclusive function of the Centre to: (d) determine all work schedules, the kind and location of equipment to be used, methods to be used, the location and number of employees required from time to time, the services to be performed, the standards of performance of all employees, work assignments, the hours of work and all other rights and responsibilities of management not specifically modified elsewhere in this Agreement; IC1I2819Hl) -6~ (e) There shall be no verbal or written agreements with any employees, that are contrary to this Collective Agreement, without agreement with the Union. ARTICLE 37 PREMIUM PA YMENTSITRANSPORT A TION/MEAL ALLOWANCE 37.06 Time Off Between Shifts (Shift Schedules) (a) Shift Schedules shall be posted at least (4) weeks in advance. Submissions The union submits that the language of Article 3.03 is unambiguous. It contends that the collective agreement contemplates a two step process for scheduling part-time employees. It maintains that Article 3.03 in combination with Article 37.06(a) provides that the Centre will post a base line schedule four weeks prior to the schedule commencement date on which the part-time employees will be scheduled for not more than 22.5 hours. The second step is to fill in any gaps in the schedule after it is posted. The union submits that Article 3.03 has two parts. It says that the first part includes the following: A Part-time employee is an employee who is regularly scheduled for not more than 22.5 hours per week. A part-time employee is defined as an employee who makes a commitment to the Centre to be available for work on a predetermined basis as required by the Centre. Part-time (PT) employees are not guaranteed a specific number of shifts per pay period or per scheduling period. The union says that the above part of the Article identifies a part-time employee as someone who is not regularly scheduled for more than 22.5 hours per week and who makes a commitment to be available for work on a predetermined basis. A part-time employee is not guaranteed a specific number of hours. The union asserts that the dispute in this part of the Article is mainly about what is meant by the words "regularly scheduled" and "predetermined". The union states that its interpretation mainly focuses on the second part of the Article which provides: Prior to the utilization of Casual staff, Part-time employees that are normally scheduled on that unit/department will be given the option of being scheduled for additional shifts over and above their normal commitment in the event of illnesses, vacations, emergencies and other periods of staff shortages. I C1l18 I 98.\.i , -7- The union notes that this part of the Article says "normally scheduled" instead of "regularly". It claims that that difference suggests a base line number of hours and establishes a standard staffing level to be provided. The union maintains that that is where the two step staffing process comes from. It contends that the additional shifts have to be over and above a base line. There has to be something that can be added to. Therefore, according to the union, part-time employees are given the option of further hours over and above the normal commitment. The union argues that the nature of the scheduling is in the last two lines of the Article. It says that those are the additional hours that can be added. The union argues that the "cap" on hours in Article 3.03 exists for a clear purpose and is not to be taken lightly. It should only be exceeded for the purposes set out in the final sentence, Le, illnesses, vacations etc. It submits that they are generally short term, unplanned absences subject to a calHn and cannot be scheduled at the time of posting. The union argues that Article 3.03 must be read in conjunction with Article 37.06(a) which requires the schedule to be posted four weeks in advance, It maintains that Article 37.06(a) sets out the timeframe against which the norm is established, It is the reference point for the base line staffing level. The union claims that it is only beyond that point that the additional hours can be added. The union also suggests that the fact that the schedule must be posted four weeks in advance supports its argument that the gaps in the schedule are to be filled after it is posted. It claims that would be more difficult if the schedule was only posted a few weeks in advance. The union also refers to Article 3.04 which applies to casual staff. It asserts that casual employees are defined in reference to part-time employees. Casual employees are not normally scheduled on a predetermined basis and are only used if part-time staff who are normally scheduled are not available. The union acknowledges that the Article contemplates that casual employees may be scheduled on a predetermined basis but says that "prescheduled" is not synonymous with "preposting". It contends that the Article contemplates that casual employees will be called in or scheduled with little advance notice. It also submits that "predetermined" and "prescheduled" are two different things. Therefore, according to the union, casual employees are not normally scheduled on a pre-determined basis but they may be prescheduled i.e. within a few days of the shift. The union contends that, if the parties had intended to collapse the scheduling process, they would not have had to use the two terms, It maintains that the language is intended to convey a distinction. The union submits that this dispute can be determined by reference to the language of the collective agreement alone. However, if contends that, if there is any latent or patent ambiguity, the best extrinsic evidence is the draft scheduling guidelines. The union asserts that the draft guidelines are the most relevant and reliable evidence, It claims that the guidelines demonstrate that the Centre was I C0281981 II -8- directing that scheduling occur just as the union argues the collective agreement requires. It says that that is evidence that both parties both knew that the language they negotiated in Article 3.03 means what the union says it means. The union maintains that the Centre did not take a different position until it found it too onerous to schedule in accordance with the collective agreement. It submits that the CSSO must follow the process even if it is finds it to be onerous since it is included in the collective agreement. The union also argues that, if its interpretation of the collective agreement is correct, the Centre was trying to negotiate a separate agreement with the employees when it circulated the form for them to indicate that they wanted to be prescheduled for more than 22.5 hours per week. The union asks that the grievance be allowed and that a declaration be issued. The union relies upon the following awards: Re Int'I Ass'n of Machinists, Local 1740, and John Bertram & Sons Co. Ltd. (1967) 18 L.AC. 362 (Weiler); He Canada Post Corp. and Canadian Union of Postal Workers (Seymour 622-9-3- 00077) (1992), 25 L.AC. (4Ih~ 137 (Shime); Re Strait Crossing Joint Venture and f.o.U.E. (1997), 64 L.AC. (41 ) 229 (Christie); Re Hamilton Health Sciences Corp. and o.N.A. (Barbeau), [2009] 98 C.L,AS. 80 (Harris); Re Windsor Raceway Inc. and S.E.I.U., Local 528, [2005] 82 C,L.A S. 177 (Lynk). The Centre agrees that the language of Articles 3.03 and 3.04 of the collective agreement is unambiguous, It insists the Articles cannot be subject to multiple interpretations because they are silent with respect to the scheduling process. The Centre therefore denies that the Articles should be interpreted as the union proposes. The Centre claims that this is really an interest dispute in the form of a policy grievance. It says that the union seeks to import a specific process for scheduling into the collective agreement which is not supported by the language. Articles 3.03 and 3.04 do not stipulate how scheduling is to occur. The Centre maintains that Articles 3.03 and 3.04 are definition sections and not scheduling or procedural clauses. They define who part-time and casual employees are. The Centre claims that the parties picked the number 22.5 hours, i.e. three, seven and a half hour shifts, to distinguish part-time from other defined employees. According to the Centre, the Articles also set out a rank prioritization as to who will get the hours, parHime employees first, then casuai employees. The Articles further set out the types of circumstances in which work can be assigned to part-time and casual employees, illnesses, vacation emeruencies etc. However, the Centre says, the collective agreement is silent about tile process of scheduling. It denies that there is a cap on scheduled hOLlrs or a two part process. The Centre notes that the management rights clause says that employees will be scheduled as required by the employer. It argues tWit the parties turned their minds to what specific restrictions would be imposed on that i C028 L983 L I -9- management right and the only restriction was Article 37.06(a) which requires that the schedule be posted four weeks in advance. The Centre maintains that the other restriction is that the parHime employees are to get the work before the casual employees. It denies that the parties agreed to a schedule posted four weeks in advance to facilitate a two step scheduling process. The Centre agrees that there are two parts to Article 3.03. It argues that the first part defines a part-time employee and the second part defines when the part- time employee gets the opportunity to work before a casual employee. It says that the word "normally" supports that interpretation. Part-time employees will be given the option of being scheduled for additional shifts beyond what they normally work for certain reasons set out in Article 3.03. However, the collective agreement is silent about how that option is to be implemented, If part-time employees are not available then the Centre can use casual employees. Unlike part-time employees, casual employees are those whose work is not normally scheduled. However, they can be scheduled or they can be called in. Nevertheless, under the union's interpretation it would never be possible for the Centre to schedule a casual employee. The shift would first have to b8 offered to a part-time employee after the schedule was posted. The Centre submilf, that its interpretation makes more sense. When it is building a schedule and it sees a need, it looks first to see if a part-time employee has indicated availabilHy. If there is no available part-time employee, it can schedule a casual ernploY8e. The Centre claims that, other than that prioritization, there is nothing else in the collective agreement which dictates how it must schedule. The Centre also argues that it is permitted to use part-time ernpio'/C-3f:lf, to cover staff shortages and that it is absurd to claim that it should post a schedule with holes in it and then seek volunteers to fill them when it already knows t~le availability of employees to work those shifts. It contends that scheduling Witll gaps poses unnecessary risk to both patients and staff. It asserts ih,"tt SP~~O and MediTech allow the part-time employees to do what they are requimd to do, i.e. to make themselves available for 22.5 hours per week on a prede~errnhed basis. The Centre maintains that Article 3.03 does not set out how that information is to be obtained any more than it sets out how scheduling is to occur The Centre submits that, if the parties had intended to impose a cap on the number of hours a part-time employee could be scheduled, they wCJuld !.;ave used express language to do so. The language the parties used, , I(lW8ver, suggests that a part-time employee can be irregularly scheduled lor more than 22.5 hours. The Centre contends that is buttressed by the langua~J8 staflng that part-time employees are not guaranteed a certain number of shifW. The Centre denies that the draft guidelines demonstrate that it agl'eed with the union's interpretation of the collective agreement and it notes thaI 1113 CSSO was not following them. It submits that the guidelines do not tOfm pa:~t I)f i!H> '~t)ilectjve agreement and could be changed to reflect any decisions on tl0V! :~I.,hC:'.rjuling should be done. The Centre argues that the guidelines are irreie1mnt to 111(: ! C0281983.11 -1 O~ interpretation of Article 3.03 because that Article is silent about how scheduling is to occur. It claims that it was exercising its management rights, working with new collective agreement language and trying out different ways of scheduling. It explained what it was doing to the bargaining agent. It says that no one referred to the guidelines in those meetings. The guidelines were never siw\ed off by the parties. The Centre contends that an arbitrator does not have the jurisdiction to read a scheduling process into the collective agreement. The Centre also denies that it attempted to enter agreements witn ernl)loYfJes without the union's consent. It maintains that, as the collective anremnont IS silent with respect to how scheduling is done, a document which solicits iil[onnation about scheduling is not a violation of Article 5.01 (e). The Centre say;:; Oml the union had conveyed to it that people did not understand what thl~} wem supposed to be doing in terms of scheduling so the Centre embarked (}(l a process of communication. The Centre asks that the grievance be dismissed. It relios on thE! !1)qIYtVlfHJ awards: Re Inn ofthe Woods and U.F,C. W., Lac. 175, [Wag} O.L.A.A, No. "75 (Aggarwal); Four Seasons Hotel v. Hotel, Restaurant & Culinwy Er('(J/(!YfWS & Bartenders Union, Local 40, [1994] B.C.C.A.A.A. No. 474 (Hope),' {;fa iST Overland Express and Teamsters, Lac. 938 (Thurston), [2002] O.i.J\,~.. No. 1036 (Surdykowski); Re Long Manufacturing Ltd. and C.A. W., Lac. '/285 (i 895),48 L,A.C. (4th) 208 (Brown). The union replies that it was not asking for a scheduling process Ie be rew:l into the collective agreement. It asserts that the words setting out tilE: nrcr;cn~, are already there. It says that it does not matter if those words are ins;i J(iEH J i" (;"t definition or a process clause, The union maintains that it is not rn/r-]lfanl whether the Centre wants a more logical process since the two step pr-ov:!:)~,; is :ncluded in the collective agreement. Decision I agree with the parties that the language of the collective a~JI\)E!ln(;;:: [ ::.' unambiguous. It is therefore un necessary to refer to extrinsic (j'/h::-:(18fJ. !) u rsuant to Article 5.01 (d) of the agreement, management has Ille ri~lht '1~'I'.:it;t(~ 1 (rii'18 work schedules except as limited elsewhere in the collective a~Jreenl(~1 Ii. lip':' limitations contained in the collective agreement do not extend to prohibiting the Centre from scheduling part-time employees for more than 22,5 hours pm week. Article 3.03 is essentially a definitional article although it does inco(p(;r~;tn scheduling to a certain extent. However, it does not include 1(19 11'10 ~;t;<) scheduling process that the union promotes. It sets out a 8ci'I(-)cil:!iI'J !:j.i~I'IIY process. Article 3.03 defines part-time employees as those whc.vt' "I"jqi iUrly scheduled for not more than 22.5 hours per week and who Illake a CO((lmitment to be available on a predetermined basis. That means that pa.rt~time employees must provIde their availability and expect to be scheduled regulany ior' .Jur more IC028198.11) -11- than 22.5 hours per week. That does not mean that they are renLllarl~1 scheduled in the sense that they have a regular schedule. "Regularly" refBn3 10 thE.' number of hours that they work. However, the use of the words, "regularly schedUled for not more than 22.5 hours per week" indicates that part-time employees may be irregularly scheduled for more than 22.5 hours per week. The Articlo goes on to explain the circumstances in which an employee could be scheduled for more than 22.5 hours per week. Prior to the utilization of Casual staff, Part-time emploYHw; :hc(t dr~l normally scheduled on that unit/department willlJe giVEJfI \i'H.) 01':::-,:,011 of being scheduled for additional shifts over and above their nOlfneJ commitment in the event of illnesses, vacations, emergencios cHKi other periods of staff shortages. Part-time employees may therefore be scheduled for three shifts wnounting to 22.5 hours for any reason and then scheduled beyond 22.5 hours in H1f':, :went of illnesses, vacations, emergencies and other periods of staff ~j~iOt ~LQ(:] Tr'le words "normally scheduled on that unit/department" mean the emrJlo~"~'(~~i who are normally scheduled to work on that unit. They have nolhiPfJ to do with a cap on hours. The second use of the word "scheduled" in the ab()v(~ !;('c'tfon (:t'the Article underlines the fact that the extra shifts can be "scheduled" not just called- in as the union maintains. The Centre is required, however, to givn employees the "option" of being scheduled beyond their normal comrnitmenL nUll does not mean that they have to be called after the schedule is posted. 11 !;:t}I~; h~"option of being scheduled" so it contemplates being scheduled, not C9.liUI.l ill, for additional shifts. The Centre meets the requirement of providiniJ Iho (J~'fd(Jn of being scheduled for additional shifts by asking the employees 10 PI')\/k1~i th':lir availability. However, the form it circulated on April 20, 2009 WCJ.S dll additional tool because it allowed employees to indicate that they wanted 10 pi ovid0 greater availability but only be scheduled their required commitment of 22.5 h(J'Jl's. Finally the use of the words "normal commitment" in the Article noes ((~fm back to the 22.5 hours in the first half of the Article but it means that I~'8,1 It ,~1.,: ,:x1v1oyees can be scheduled for shifts above 22.5 hours for the reasons S('L uUl. Article 3.03 does not say and does not mean that part-timH f)mph:'cl~fj ,vi'! only be prescheduled for 22.5 hours and must be called and offemd iwltl'df shifts after the schedule is posted. It uses the word "scheduled" bmll in rHfHrence tu Hie 22.5 hours and the additional shifts. The Centre has the right to 8ciwdu ie j h~ additional shifts providing that they are for the purposes outlin(;:IJ The interpretation of Article 3.03 is further supported by Altidc; ~).\":, ),:'~jlj(j 3.04 defines casual employees. A casual employee is someone who ir; n:)t X,!'(~'!ally scheduled on a predetermined basis. However, a casual ernp,())":;; .ld,: Ijt! "prescheduled to fill in for illness, vacations, emergencies and ,)j !lI)i :x} "I)cb of staff shortages once it has been determined that no ParHimo eJ)uJ'JY(J;S' l!orl1lally scheduled on that unit/department have agreed to work the rHqui~()r! ti,;rTJClr of shifts available". A casual employee may, therefore, l)e Sd10f)!} ! ,",c. !', ';' ':~li!~ IC0l8198.l.11 -12- circumstances. The word "prescheduled" underlines that the shiHs can bo preplanned and included on the schedule. They are not just Iillllt9d to call-ins. The word "prescheduled" used here for casual employees dOl3S not lemJ to the conclusion that part-time employees can be "preschedulecJ" for ()ni~1 ~:~'.S nours. In fact, it leads to the opposite conclusion. If the union's jnierp(EJ!:~I':il)(, 01' Article 3.03 were accepted, casual employees could never be "presclledlltecl". Tile Centre would have to post a schedule with unfilled shifts and then c8.11 tll8 9art- time employees to fill them. Only afterthe schedule was postod and thn part-time employees had been called could the shift be offered to a ca~jl)r:lI o{i'rpJoy':,'a. That is not what Articles 3.04 and 3.03 contemplate. They contempI8J\:) thdt Ii 10 Centre can schedule part-time employees for three shifts per wec-:!k and tllr:)r1 il 'Nill fill in additional shifts that are available due to illnesses, vacatiorls, en1p,qUll::iE~g and other periods of staff shortages. Where no part-time ernploY€I~ is ,wadable, {he Centre can schedule a casual employee. There is nothing in Ihe! GI)110Ctiv~) agreement which prevents the Centre from filling any gaps lha.t Ii Cdrl f,:1I berore it posts the schedule four weeks in advance. The above interpretation is also consistent with Article 31.GB(:.1). i".r!icIU J ~.'.O()(a) requires the Centre to post the schedule four weeks in aCi\tan(~(J. Tl1G 1',!).lpnse of such a requirement is to allow employees to know when they will I H: w;:,d\'1 iq. Filling as many available shifts with part-time employees a~, P'")Sf;;'.I(! in t'w schedule also allows those employees to know when triG)' will oe vvolldnp four weeks in advance and therefore meets the commitment of J\n:ll~lc T: .06(::1) As there is no ambiguity in the collective agreement, them is nC::2i".{ .~,.: ('ollsider extrinsic evidence, The draft scheduling guidelines did not rai:31~ ;: In.Glll ambiguity. They were just drafts which were not even fOllr)wnd b\' ht~ CSSO. Most importantly, they were not part of the collective agr0E.nTI~JIi.. For all of the above reasons I find that the Centre did not ViO,(::10J Jk: :~r;!kG)'ve agreement by scheduling part-time employees for more than :?~,' ~j i),): Ji.; pm week, J also find that the Centre did not violate Article 5.01 (e) of th(:} cf)l:\;,:j\l:~ agreement by asking employees to fill out the form specit\;jnq 'hi.,I' lh:l ,1 I.';,' wanted to work more than 22.5 hours. As the Centre was nntl'l(~d ,(' c...~:'-lr;'-lule as it was doing and was required to give part-time employee::; tho op",m c.: working additional shifts it was not asking employees to enter an Hglf:;))'W"j"l'..:.-.. .",Jas contrary to the collective agreement. It was trying to rnee( OW))! !c~mi (':\j)(essed by the union that some employees wanted to show wider :wanl1~)ii+, I)L:i 1~11y wanted to be scheduled for 22.5 hours. I C0281983.11 The grievance is dismissed. Dated at Toronto, April 20, 2011 "Laura Trachuk" Laura Trachuk (m28 198.\ 1) -13-