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HomeMy WebLinkAbout1978-0001.Jermey et al.78-07-17l/78 IN THE MATTER OF AN ARBITRATiON Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Eefore THE GRIEVANCE SETTLEMENT BOARG Between: Before: Fork the Grievor For the Employer Hearing Messrs. Jermey, Cooper, Bell, Marshall - The Griever Vernon & Rowe And Ministry of Community and Social Services - The Employer Professor M. 5berts - Vice-Chairman Mr. G. K. Griffin - Member Mr. R. Cochrane - Member Mrs. L. Stevens, Grieyance Officer Ontario Public ServiceEmployees Union 1901 Yonge Street Toronto, Ontario Mr. A. R. Rae, Personnel Services Branch Ministry of Cormnunity & Social Services 5th Floor, Hepburn Block Queen's Park, Toronto June 15th, 1978 Suite ZiOO, 180 Oundas St, West Toronto, Ontario -2- The grievors are plumbers (Messrs. Marshall and Bell) and electricians (Messrs. Jermey, Cooper, Rowe and Jamieson) in the maintenance department of the Huronia Regional Centre. Their grievance is the sec~ond to come before this Board as a result of the institution in August 1977 of an On Call Duty Schedule in the maintenance depart- ment at the Centre. Dealing with the first grievance, the Board held in decision Re X2/77 OPSEU (J~~~EWII et al) and crown/Ontario fCommunity s social services] that the On Call scheme was governed by Article 16 of the Collective Agreement,~ dealing with "On-Call Duty" rather than by Article 15, dealing with "Stand-by Time." Under Article 16.3, an employee is to be paid 25c per hour for every hour of on call duty (except when actually called back and working); under Article 15, stand-by duty is to be paid either at the basic'hourly rate, or at one-third the basic hourly rate, depending on how long the employee is required to stand-by. Except in emergency situations;stand-by time requires the approval in writing of the Deputy Minister. In this grievance, the plumbers and electricians call into question not just the classification and rate . of pay of the On Call Duty Schedule, but its essential validity. They allege that it is in violation of their rights under Article 8 of the Collective Agreement, which states: There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon between the employee and the Ministry. Basically, because the On Call Duty Schedule requires each person to be, in the words of Article 16, "reasonab1.y available for recall to work" every third (plumbers) or fourth (electricians) week, including weekends, the -3- grievors contend that it denies them their regularly scheduled days off, Saturday and Sunday, whenever they are on call. As a result, in their view, it offends the Collective Agreement and should be discontinued. The issue presented is thus the simple, if far-reaching one, of whether the practice adopted in the maintenance department is permitted by Article 16 notwithstanding Article 8. The representatives of both grievor and employer presented to the Board an agreed statement of facts and confined their oral presentation at the hearing solely to questions about the interpretation of the Collective Agreement. This approach was ideally suited to the nature of the case, and all concerned are to be warmly congratulated for using it. The grievors argued that Article 8 was clear and unambiguous, in stipulating two consecutive "days off" during each week. There was no exception contained in Article 8 itself which would permit incursions into days .~ off for on call duty; the only exception .related to permis- sion to have non-consecutive days off. While admitting that provisions,for overtime (Article 13) and Cal] Backs (Articlq:l4) could conceivably cut into the days~ off provision, the grievors argued that thel'se~riousness of the incursion was compensated by the premium pay provided by Articles 1.3 and 14. Reference was also made to the Holiday Pay provisions of Article 19, which allow time and one half with a minimum credit of hours for working on a recognized holiday. The grievors argued that it would be unreasonable to interpret Article 16,.as overriding Article 8 so that scheduled time off would be worth only 2% per hour, on an:on call 'situation whereas overtime, holidays, and call-backs are valued at.time and a half. ./ I ’ I -4- The grievors also pointed to Article 11, providing for a shift premium for hours worked between 5,:OO p.m. and 7:OO a.m., and Article 23, allowing credits for travelling time outside working hours, as further illustrations of the Agreement's intent to safeguard the leisure time of employees. This respect for leisure time, they argued, was violated by the employer's On Call Schedule and the Schedule was accordingly in violation of the agreement. The grievors maintained'that Article 16 should be read subject to the guarantee of two days off in Article 8, so that on call duty could be required on regular working days but not on scheduled time off. In this case, the On Call Schedule required that a plumber and an electrician be reasonably available one week at a time for recall from 4:30 p.m. to 8:00 a.m. on week nights and on weekends from Friday at 4:30 prm. to Monday at 8:00 a.m. According to records filed as exhibits 14 to 19, a considerable proportion of the actual call-backs during the on call periods occurred on the weekends rather than in the evenings. The employer argued that.Article 16 brovided ample‘ authority for the on call practice it had instituted. Nothing in the Agreement, it argued, prevents such a scheme. This argument focused on a number of points. It was contended that Article 16.3 did provide a type of 'premium,' pay for on call, of 2% per hour. If the employee was called back, Article 14 would govern time actually worked, providing for a minimum period of four hours at time and .~ a half. It was also argued that the on call employee does have Saturday and~,Sunday "off" in an on call week; the requirements for an on call worker is to be "reasonably available" for recall, and reference was made to some flexibility in .arrangements for.contacting and, bringing in employees. The employer also stated that no employee had been disciplined for refusing to come in response to a call, - 5 - a feature of its scheme which it regarded as important. It did not, however, go so far as to argue that the employer could not discipline employees who-~were on call and refused to come in to work. Nor does 'it appear from the materialfiled or from argument that the employer has clearly communicated to employees their ability to refuse to come in to work. The employer's argument also dealt with the language of Article 16 itself, which defines "on call duty" as a period of time that is not d regular working period, overtime period, stand-by period or call back period, during which an employee is required to be reasonably available for recall to work. It was argued that this language is wide enough to cover weekends or other scheduled time off as well as evenings. It is with some-reluctance that this Board accepts the contention of the employer. There is no definition in the Collective Agreement of "regular working period", which seems to be one of the key phrases in Article 16. It is used in only one other place that we could discover. Article 13 defines "overtime" as an authorizeh period of Work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working period, or per- formed on a scheduled day(s) off. This appears to suggest that a "regular working period" cannot occur on a scheduled day off, but only on a scheduled working day. In the context of Article 16, it could indicate that on call duty in "a period of time that is not a regular working : period" could not, therefore, ever take place on a scheduled day off. While this interpretation would tend to support the i,’ i. -6- grievors' argument, we do not feel that it is, in the end, available. Article 16 defines on call duty with reference not only to "regular working period" but also with regard to overtime, stand-by and calls-back periods, all of which could occur on a seheduled day off. This seems to bring scheduled days off within the reach of Article 16 and the on call provision. It would seem, therefore, that the employer can support its plan with reference to Article 16, in spite of the provisions of Article 8. Furthermore, although 25& per hour may be a very low premium for leisure time, it is nonetheless some recognition of the cost of invading employee leisure and cannot be said to be.at odds with this basic approach of the Agreement. Assuming that the employer maintains some flexi- bility and generosity about employees who cannot comply with a call into work during anon call phase, it cannot be said that the employee is deprived of regularly sched- uled days off. The critical element does seem to be the ~, nature of employer response to requests not to be scheduled for a particular week (or weekend) and to refusals to respond to a call during the on call period. The tighter the control the employer seeks to exert on the employee's disposition of leisure time the closer the employer may come to depriving the employee of rights under Article 8 in a particular case. It is not inconceivable that employer discipline of an employee for refusing to be scheduled, or refusing to respond, could givq rise to a legitimate grievance, depending on the circum- stances. The employer offered a number of reasons why it had been necessary,to institute an On Call Schedule in the maintenance department, when all other departments continue to operate on a voluntary on call system: i.e. the switchboard calls all persons in the department until someone is found who can come in. The employer also explained why, in its !' .._( .!. -7- view, it was difficult to arrange for.some people in the maintenance departmen~t to work, on a regular basis, over the weekend (say, Thursday to Monday each week). Without criticizing the validity of these reasons, or evaluating them in detail here, we would note one thing that seemed to us conspicuous by its absence: signs of consultation with the maintenance employees not just about whether the on call system was necessary but whether it was the best possible in the circumstances and how it could be made to work more conveniently (perhaps through volunteers) if it was agreed to be neces'sary. The system seems to have caused a lot of bitterness, witness the generation of two grievances. Consultation might, we hope, alleviate some of. these difficulties. If consultations between employer and employees were not successful at this time in resolving these conflicts, then one would hope that an occasion to do so would arise in formal contract negotiations, should the need for a solution be as strongly felt at that time. This Board thinks that the on call system is an unfortu- nate, if strictly speaking permissable, imposition on employees. While it may be true that an on call employee can refuse to attend to a particular call and still be regarded as "reasonably available for re~all,'~ it is also true.that an on call require- .ment of one weekend in three or four - or more frequently where illness or vacation disturb the roster - is a substantial constraint on the individual employee. That it is such a constraint would, it is hoped, be taken into account in inter- preting "reasor~able~' availability for recall. Unfortunately, the question of the frequency of required on call duty did not come up for consideration in the prior grievance arising from ' ' ~. this scheme. Vice-Chairman Prichard's panel considered only whether the employee was required to keep himself at any one time "available for inmedidte recall" (Article 15) or "reasonably available for recall" (Article 161. :, ,~, . ,. -a- Although the wording of Articles 15 and 16 almost ,dictates that the issue be considered this way, one loses an important dimension ofthis problem by not viewing the demands made on the employees over time as well as in particula~r instances. The existence of regularly recur- ring requirements for on call duty, coupled with the much lower rate for on call than for stand-by duty, the absence of a requirement of Deputy Ministerial consent for on call duty, and the omission of "immediate" from the "recall to work" provision of Article 16 all would suggest the wisdom of flexibility and generosity in interpreting the phrase ':reasonably available for recall" in Article 16. Given its absence from Article 15, the term "reasonably" can‘be regarded as a material one in Article 16. -The employer's communication to employees of its readiness to be flexible about reasonable availability is, in turn, an important element in any finding that on call duty does not, in fact, unduly impinge on an employee's days off. Because we were not, in this grievance. dealing with employer discipline of an employee for refusing to respond to a call-back during an on call period; and because we had no evidence before us to contradict, as to these grievors, the employer's assertion that no one has been disciplined for refusing to respond, we could not enter into's consideration of the exact balance that must be maintained between employee freedom to use scheduled days off and employer rights under Article 16. It is for this reason, and with an appropriate caveat, that we,find the employer On Call Schedule as described.to us to be permissable under Article 16. Dated at Toronto this 17th~day of July, 1978. Mary Ebe s Vice-Chairman I concur G. K. Griffin Member I co*cu.r Ron Cochrane Member