HomeMy WebLinkAboutGroup 11-07-12BETWEEN:
BRUCE COUNTY EMS
(Hereinafter called the "Employer ")
-and-
OPSEU, LOCAL 250
(Hereinafter called the "Union")
GROUP GRIEVANCE
(Hereinafter called the "Grievance ")
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For the employer: Douglas Harris
For the Union: Mitch Bevan
Hearing held at Kincardine, the 6th day of July, 2011
This grievance arises because of the election on October 14, 2008. In order to
comply with its statutory obligation to permit each employee time off to vote the
employer decided to call in the night shift early so as to permit the day shift an
opportunity to vote before the close of polls. The basic facts that give rise to this dispute
were agreed to.
All of the night shift employees came in early. Some came in one half hour early
and some one and one half hours early. All were contacted the same day which was the
day that they worked the extended shift. The employer said that they were all told that
they would be paid at overtime rates for the extra time that they worked and that the
request was voluntary. All agreed to come in. The Union could not confirm that all of the
employees were told the same thing but in its view for reasons that will be apparent
shortly the notice that they were given and any agreement by the employees is not
relevant to the issue before me.
The difference between the parties is quite straightforward and both have
presented logical positions. The employer says that the payment is governed by Article
14.05, the overtime article which provides for overtime for all hours worked "...in excess
of an employee's regularly scheduled hours..." It says that this was precisely what
occurred and proper payment was made. The Union says the what occurred was a call
back and is governed by Article 14.06 which provides in part that when an employee is
"called back to work after leaving the premises who reports to work outside his normal
scheduled hours of work will receive no less than 4 hours of pay at time and one - half... ".
The employer said that it tried to have the call back article removed in recent
bargaining as it has not come into play since the operation became a two shift 12 hour
operation and employees were not needed for call back. The union opposed the proposal
and the matter was dropped. I heard no evidence of bargaining history and so I cannot
utilize it in my analysis but even if I did hear such evidence to my mind it would have
been inconclusive. While the initial utility of Article 14.06 may be much diminished the
article still remains in the agreement.
I also must accept Mr. Bevan's submission with respect to what the employees
were told when asked to call in early and what they agreed to. If Article 14.06 is the
proper article to apply individual employees cannot bargain out of it. Thus any agreement
by individual employees cannot negate the article. I also note his suggestion that when the
employees were asked they did not first parse the collective agreement before responding.
It is clear beyond question that if the employees were asked to come back for a
period of time that was not contiguous with the start or ending of their shifts Article 14.06
would apply. The difficulty in this case is the periods were contiguous with the start of
their shifts and one must then choose between the overtime article and the call back
article.
There is no specific wording to assist in choosing between the two articles. While
Mr. Bevan suggested that the difference may turn on the length of notice given to the
employees and he noted that the employer had several weeks to make arrangement to
meet its statutory obligations, there is no language in either article that speaks of any
notice period.
Mr. Bevan reviewed two lines of arbitral authority that have dealt with this issue.
One line, referred to as the "two trip" theory focuses on the fact that a call back requires
the employee to return to work after he has already gone home. Hence he has to return to
work and thus the label of "two trip ". The other line called the `literal line" requires the
analysis to be based on a strict parsing of the call back article because of the multiplicity
of call back articles and their different wording. The difference between the two
principles was neatly summarized by Arbitrator Williams in North Central Plywoods
(1990), C.L.A.S 34, when he stated that the "...callback time is a separate and distinct
compensation which must be paid ... for inconveniencing Employees by calling them to
work at a time other than their regular shift... The other principle is that the fundamental
and only clear rationale for callout time is that it provides a minimum amount of pay for a
separate trip to the plant ... but is only applicable when the work required is not
contiguous to a regular shift ". He then reviewed several decisions on both sides of the
ledger and ultimately rejected the "two trip" theory. He said that callback is payable in
general terms when an employee has been called back to work after having clearly left the
place of employment after a regular shift the fact that the callback hours merge with the
regular shift hours, i.e. that the call back period is contiguous to the start of the shift is not
decisive.
I have reviewed the other cases filed by the Union which support the literal theory
which also refer to the countervailing line. I do not think that any useful purpose could be
served by reviewing them in detail but they are Camp Hill Medical Centre (1994) 40
L.A.C. (4`4) 381; Memorial University of Newfoundland (1995), 38 C.L.A.S. 219; Domtar
Fine Papers (1990), 17 C.L.A.S. 75.
In my view the language of Article 14.06 does not justify a conclusion that the
"two trip" theory is to be applied. On the agreed to facts it is clear that the all of the
conditions of the article have been met. If the employees had been advised when at work,
perhaps as late as the previous day, that they would have an early start it may well be that
the overtime article would have been applicable.
The question that remains is the amount to which the employees are entitled. To
require the employer to pay the overtime rate for the 4 hours plus the hourly rate for the
regular shift obviously would be a windfall for the employees and pyramiding. I accept
the reasoning of Williams in North Central Plywoods that such a result was not in the
contemplation of the parties. Accordingly I award that the employees are to receive 4
hours call in pay at overtime rates less the one half hour or one and one half hour
overtime they received less the straight time rate paid for the regular shift that overlaps
the call in hours.
The grievance is allowed and I shall remain seized if the parties have any
difficulty in the implementation of this award.
Dated at Grand Bend, the 12th day of duly 2011.
W. B. Rayner