GSB#2002-2427

UNION#2002-0999-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

Written Submissions

July 7 and 21, 2003

DECISION

The union claims call-back pay for some of the employees who provided essential or emergency services during the eight-week strike in early 2002. The policy grievance concerns payment for call back, standby and on-call, but this decision deals only with call-back pay.

I

Entitlement to call-back pay in one specific scenario was addressed in an earlier decision, dated June 5, 2003, arising from the policy grievance and an individual grievance filed by Alison Ducette, GSB File No. 1702/02. Ms. Ducette, a transportation enforcement officer, was designated as an essential services worker. During the first four weeks of the strike, she was scheduled to work three shifts of 7.25 hours weekly at the Lancaster truck inspection station. A schedule posted before the commencement of the strike indicated she was required to work on March 27, 28 and 31. A schedule posted on March 27, 2002 indicated she was required to work on April 4, 5 and 7. On April 2, when Ms. Ducette was not scheduled to work, a manager phoned her at home, at approximately 6:00 a.m., and asked her to report for duty. She worked approximately 5.25 hours that day and was paid the basic hourly rate for time spent on the job.

In concluding Ms. Ducette and others in analogous circumstances were entitled to call-back pay, I wrote:

The application of the law to the facts at hand is straightforward. Ms. Ducette was designated to provide essential services and did provide such services during the strike. Accordingly, she was covered by the [expired] collective agreement from the first day of the work stoppage to the last. She left her place of work at the end of her scheduled shift on March 31; she was called back to work on April 2, before her next scheduled shift on April 4. In these circumstances, she was entitled to call-back pay as specified in article ADM9.1 of the collective agreement. (page 4)

That ruling dealt exclusively with Ms. Ducette and other essential employees who were called back to work on a non-scheduled day in the midst of a block of scheduled shifts, when they had already worked one such shift and were slated to work another. Counsel agreed that entitlement to call-back pay in other scenarios would be addressed by way of written submissions after they received the first decision.

II

The employer submits the only employees entitled to call-back pay are those in circumstances analogous to Ms. Ducette’s situation. The union contends both essential and emergency employees are entitled to call-back pay for all “non-scheduled” shifts worked during the strike. As well as essential employees in circumstances analogous to those in the Ducette case, the union’s claim encompasses employees in the following scenarios:

1. Emergency workers in circumstances analogous to Ms. Ducette—i.e. those with scheduled shifts who were called back to work on a non-scheduled day in the midst of a block of scheduled shifts, when they already had worked one such shift and were slated to work another.
2. Both essential workers and emergency workers with scheduled shifts who were called in to work between the commencement of the strike and the first scheduled shift worked during the work stoppage;
3. Both essential workers and emergency workers with scheduled shifts who were called in to work between two blocks of scheduled shifts;
4. Both essential workers and emergency workers with scheduled shifts who were called in to work between the last scheduled shift worked during the strike and the end of the work stoppage;
5. Emergency workers with no scheduled shifts who were called in to work at any time during the strike.

III

To be entitled to call-back pay, an employee must have been covered by the 1999-2001 collective agreement and must have met the entitlement criteria prescribed by that agreement. Coverage under the collective agreement is addressed here and in the next section of this award. The terms of the collective agreement are considered in the final two sections.

It is common ground that the expired collective agreement applied not only to essential employees but also to emergency employees with scheduled shifts. The dispute about coverage under the collective agreement is limited to emergency employees with no scheduled shifts. Counsel for the employer contends “unscheduled emergency workers” (page 2) were not covered by the call-back provisions in the agreement. Union counsel takes the opposite view:

Simply put, the collective agreement, in its entirety, governs both essential and emergency workers during the labour dispute: once such a worker has been requested and commences work, they are entitled to whatever premium, if any, the collective agreement provides for the work in question. Thus, for either employee, if the preconditions required to satisfy call back entitlement are met in respect of the shift for which the individual has been called, then they are entitled to the premium. (page 2)

Collective-agreement coverage is governed by the document entitled “Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations” (the conditions document) dated September 20, 2001. The first and fourth paragraphs of that article pertain to emergency employees:

All collective agreement provisions apply to essential and emergency workers without interruption save only that Appendix 9 and Appendix 18 shall not apply.

For those employees who are used to perform emergency services as provided in the emergency services part of the essential services agreements and as required by the Employer the above terms and conditions of employment apply. After determining that an employee is to be used to perform emergency services work, the above terms and conditions of employment apply.

Relying upon the fourth paragraph of article C3a, employer counsel submits:

It is the Employer's submission that this language is clearly intended to restrict any Collective Agreement entitlements of unscheduled Emergency workers to that specific time period in which it has been determined that they will work. Consequently, if it is determined that an Emergency worker will work on a Monday and a Thursday, he or she is only entitled to call-back if called back in to work between the shift completed on the Monday and the shift scheduled on the Thursday. Simply put, an Emergency worker does not become entitled to call-back (or any other Collective Agreement provisions) for the duration of the labour disruption simply because they reported to work on one occasion or an number of occasions when those occasions were not pre-determined. ...

For those who perform scheduled Emergency work, there is at least a defined period during which they provide emergency work during a rotation and therefore may be entitled to call-back and related benefits. However, unscheduled Emergency workers report to work on an occasional basis with little notice and cannot point to a time period in which they would become entitled to call-back. Their entitlements necessarily end at the completion of their shift and only recommence when they report for their next shift. They do not enjoy any entitlements during the intervening time period between shifts because there has been no determination that they will be scheduled to work at the time that their initial shift comes to a close. Had such a determination been made by the end of the first shift (e.g. they work on Monday and agree that same day to report on Friday) then they may become entitled to call-back if they are called in prior to the next scheduled shift (e.g. they are called in on Wednesday). …

As a result, it is clear that on the specific shift that an unscheduled Emergency worker is providing services he or she is entitled to receive the full benefits of the Collective Agreement. However, in the absence of a subsequent scheduled shift at that time during that rotation, the unscheduled Emergency worker's entitlements come to an end and only recommence in the event that it is later determined that he or she will provide emergency services again. (pages 2 and 3; emphasis added)

In support of this argument, counsel relies upon two decisions dealing with the application of an expired collective agreement to emergency employees during the first OPSEU strike in 1996: (1) OPSEU (Cousins) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 822/96 (Roberts); (2) OPSEU (Burns) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 823/96 (Roberts).

IV

The Cousins and Burns decisions were made against the backdrop of an earlier conditions document containing a provision identical to the fourth paragraph of article C3a of the current document. The facts and rulings in these two cases were reviewed by me in OPSEU and Management Board Secretariat, GSB File No 1510/02, dated December 2, 2002, a case dealing with the entitlement of essential and emergency employees to holiday pay for Good Friday and Easter Monday in 2002:

The grievor in Cousins was designated as an emergency employee; her “name appeared on a list of personnel to be called in to replace any essential employees who were away from work” (page 1). She claimed reimbursement for dental expenses incurred by family members on March 7 and 26. On March 20, she was scheduled to work on March 30 and 31 and April 1, 2, and 5. The union contended the grievor was entitled throughout the strike to dental benefits, under the expired collective agreement, because she had been designated to perform emergency services. According to the employer, her entitlement was limited to dental work done on days she reported for duty. Vice-Chair Roberts rejected both of these arguments as unsupported by the wording of the applicable conditions document, dated January 11, 1996.

He relied upon the third paragraph in article C1 of the 1996 document which is identical to the fourth paragraph in article C3a of the 2002 version quoted above. Mr. Roberts wrote:

This wording did not say that once an employee actually commenced the performance of emergency services work, he or she would be covered by the collective agreement. Instead, it stated that “the collective agreement will apply” after “determining that an employee is to be used to perform emergency services work.” This made the “key” to application of the collective agreement the date upon which the employer actually “determined” to use an employee in this way.

In my opinion, the date upon which the employer “determined” that the grievor would be used to perform emergency services work was the date upon which she was scheduled to work during the strike, i.e., March 20, 1996. Prior to that date, there was too much uncertainty. The grievor was just one among a number of employees deemed qualified to perform such work. She might never have been called upon to work during the strike. Once the grievor was scheduled to work, however, all uncertainty came to an end. The employer had “determined” to use the grievor to perform emergency services work within the meaning of the “Conditions” agreement. From that date until the completion of performance of the work, the provisions of the collective agreement -- including the dental benefit plan -- applied to the grievor.

This means that when dental services were provided to the grievor's husband, Robert, on March 26, 1996, the grievor was covered by the benefit plans included in the collective agreement. When dental services were provided to her son, Aaron, on March 7, 1996, however, the grievor was not covered. (pages 4 and 5; emphasis added)

In short, the conditions document was interpreted to mean that entitlement to dental benefits began when an employee was scheduled to work and ended when all scheduled work was finished.

The grievor in Burns was a correctional officer. Officers at each institution were divided into two groups, with essential services being provided by one group for the first period of two weeks, then by the other group for the next two weeks, and so on. During any two-week period when a particular group of employees was not providing essential services, they could be called upon in an emergency. The grievor visited his dentist on the second day of the strike, when he was available to perform emergency services but not required to provide essential services. His entitlement to be reimbursed for dental benefits was determined by reference to the essential services umbrella agreement for the correctional services bargaining unit. (The decision makes no mention of the conditions document considered in Cousins.) The relevant provisions of the umbrella agreement stated:

6. All provisions of the collective agreement shall apply to bargaining unit employees designated to provide emergency services under this agreement, or as agreed to by the parties at the central table.

21 (c) It is understood that employees are only deemed to be essential for the rotational period during which they are required to work. It is also understood that at all other times they are deemed to be emergency service personnel.

Applying these sections to the facts at before him, Mr. Roberts wrote:

Equating “designated” under section 6 of the emergency services agreement with “deemed” under section 21 (c) of the umbrella agreement would lead to the conclusion that the parties intended the collective agreement to apply to all correctional officers in the bargaining unit throughout the entire period of the strike. Throughout this period, correctional officers were deemed under the umbrella agreement to be either essential workers or emergency services personnel. According to the submissions of the union, the collective agreement would apply to them regardless of which they were deemed to be. It would not matter if a correctional officer were ever called in to perform emergency services work. It would not matter if the correctional officer spent all of his non-essential rotation of the picket line. To ascribe so far-reaching an intention to the parties--and in particular, the employer--would be unreasonable.

It seems to me that the more reasonable interpretation of “designated” under section 6 of the emergency services agreement would be to equate it to “scheduled” or “called in” by the employer to provide emergency service. Scheduling or calling in an employee for this purpose would seem to be an appropriate point at which to trigger application of the collective agreement to an otherwise-striking employee. It is then that the rights and responsibilities of the employer and employee under the emergency services agreement crystallize. The employer expects to receive emergency services at a specific time from a specific employee. The employee is required to provide them. In return, the employee reasonably expects to receive the benefit of the collective agreement.

In the present case, the grievor incurred his dental expense on the day after the commencement of the strike. At that time, he was deemed to be emergency services personnel under the umbrella agreement but had not been scheduled or called in by the employer to perform emergency services. ... Accordingly, the collective agreement did not apply to the grievor at the time of his dental expense, and he cannot claim reimbursement under the dental benefit plan of the agreement. (pages 3 and 4; emphasis added)

In other words, the grievor’s claim for reimbursement was denied because his dental expenses had been incurred before he had been called in or scheduled to work as an emergency employee. (pages 6 to 9; emphasis added)

As the fourth paragraph of the current conditions document is identical to the provision interpreted by Vice-Chair Roberts in Cousins, I went on to conclude the ruling in that case “continues to embody the rules determining when emergency employees enjoy the benefit of the collective agreement” (page 15). Summarizing this ruling, I wrote:

An emergency worker was covered by the collective agreement in the interval between being scheduled to work and completing all scheduled work. The collective agreement did not apply to such an employee before being scheduled to work or after all scheduled work had been completed. (page 18; emphasis added)

This ruling was clarified in a later decision, dated October 20, 2003, in the same case:

In saying an emergency employee’s coverage under the collective agreement begins with “being scheduled to work”, I did not intend to treat a shift posted as part of an employee’s weekly or biweekly schedule differently from a shift for which he or she is called back on short notice. Rather, I meant to afford the same treatment to these two methods of summoning employees to work, just as Vice-Chair Roberts did in OPSEU (Burns) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 823/96. In that case, he wrote: “scheduling or calling in an employee … would seem to be an appropriate point at which to trigger application of the collective agreement” (page 4; emphasis added). The meaning of this ruling is best illustrated by using a concrete example. Consider an employee who was required to work on March 25, 26 and 27 according to a schedule posted (or a call back made) on March 22. Coverage under the collective agreement would begin with the posting of the schedule (or the making of the call back) on March 22.

As to when coverage under the collective agreement ends, the interim award says the agreement applies during the period between being scheduled to work and “completing all scheduled work.” In other works, coverage stops when all scheduled work is completed. The parties’ differing interpretations of this ruling can be illustrated by reference to the hypothetical employee directed on March 22 to work shifts on March 25, 26 and 27. According to the argument advanced by counsel for the employer, the collective agreement would cease to apply to this person on March 27, if as of that date he or she had not yet been assigned a later shift. According to the position taken by union counsel, coverage would continue until the end of the strike, or, in the alternative, until the completion of the last work performed during the work stoppage, even if that work was not assigned until after March 27.

In my view, management’s position is the correct one. The union’s primary argument must be rejected because it does not fit with the language of the interim award. That decision holds coverage under the collective agreement ends with the completion of the work assigned, not with the termination of the work stoppage. I am not persuaded by the union’s alternative argument because it is inconsistent with the ruling in OPSEU (Cousins) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 822/96 which was adopted in the interim award. In Cousins, Vice-Chair Roberts wrote:

In my opinion, the date upon which the employer “determined” that the grievor would be used to perform emergency services work was the date upon which she was scheduled to work during the strike, i.e., March 20, 1996. Prior to that date, there was too much uncertainty. The grievor was just one among a number of employees deemed qualified to perform such work. She might never have been called upon to work during the strike. Once the grievor was scheduled to work, however, all uncertainty came to an end. The employer had “determined” to use the grievor to perform emergency services work within the meaning of the “Conditions” agreement. From that date until the completion of performance of the work, the provisions of the collective agreement … applied to the grievor. (page 5; emphasis added)

Applied to the hypothetical employee described above, this passage means coverage under the collective agreement would end when the scheduled work was completed on March 27. The reason the collective agreement would not apply after that date is that no further emergency work had been assigned before then and there was “too much uncertainty” as to whether any would be assigned later. (pages 2 to 3)

Based upon my earlier rulings, I conclude the expired collective agreement applied to emergency workers in the interval between being called back to work and completing the assignment for which they had been called, regardless of whether they also had scheduled hours during the work stoppage. Accordingly, such an employee would be entitled to call-back pay, if she or he met the criteria determining entitlement to such pay as set out in the collective agreement.

V

I now turn to consider the call-back provisions in the 1999-2001 collective agreement. Article ADM9.1 deals with call-back pay for employees in the administrative bargaining unit:

An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours’ pay at one and one-half (1½) times his or her basic hourly rate.

The call-back provisions for employees in other bargaining units are identical.

As to the application of these provisions to essential and emergency employees, counsel for the employer submits:

Consequently, it is clear that call-back is only owed to a classified employee when two specific conditions are met: (i) the worker has already worked a shift and (ii) the worker is being called in prior to his or her next scheduled shift. As a result, if the worker has not worked a shift yet during a rotation during a labour disruption or is not scheduled to work again during that rotation then call-back does not apply. (page 3)

According to this line of argument, entitlement to call-back pay for work performed during the strike is limited to employees in circumstances analogous to Ms. Ducette—i.e. essential employees or emergency employees with scheduled shifts who were called back to work on a non-scheduled day in the midst of a block of scheduled shifts, when they already had worked one such shift and were slated to work another.

The employer’s argument rests partly upon the premise that both the last shift worked before the strike and the first worked after should be ignored when determining whether call-back pay is owed for work performed during the work stoppage. Counsel for the employer submits:

A labour disruption in the OPS environment effectively severs any continuum and creates a new system in which Essential and Emergency workers provide specified services in the midst of a strike. (page 7)

Counsel for the union rejects the premise that work done during the strike should be viewed in isolation:

[T]he commencement of the labour disruption does not render a nullity those events which occurred immediately prior to its commencement. It is not, as Employer counsel suggests, a new set of conditions existing in isolation from the pre-strike conditions; rather, it is a set of conditions which apply, without interruption, to the persons affected by it. This is important because the submissions of Employer counsel urge the Board to ignore both work done prior to the commencement of the strike and work done after its conclusion. … [I]t is necessary to consider this work done prior to the strike and after its conclusion in determining the entitlements of the individuals who were required to work during its currency. (page 2)

Union counsel contends employees are entitled to call-back pay for all unscheduled shifts worked during the strike because each such shift “carried with it the inconvenience of being called out on an unscheduled basis—the underlying reason for call back pay” (page 5). As to this being the purpose of call-back pay, counsel relies upon the following passage from Board of School Trustees of School District No. 39 (Vancouver) and International Union of Operating Engineers (1995), 1995 CanLII 18289 (BC LA), 47 L.A.C. (4th) 248 (Hickling):

The purpose of the [call-out] clause is not to compensate for hours actually worked but for the inconvenience of being called out to work during one’s off-duty hours. (page 264)

This passage was cited with approval and applied by this board in OPSEU (Elliot) and Ministry of Labour, File No. 1282/97, decision dated November 10, 1999 (Briggs).

VI

Taking a literal approach to interpreting ADM9.1, I see no reason to discount an employee’s last shift before the strike, and first shift after, for the purpose of determining entitlement to call-back pay. However, a collective agreement should be construed with an eye not only to contractual language but also to the purpose underlying it.

Those who negotiated the call-back provisions in the collective agreement did so with their primary focus on the typical scenario of an employee being called back to work when no strike or lockout is underway. In this context, an employee who leaves the workplace after one scheduled shift and is ‘called back to work” before his or her next scheduled shift is entitled to call-back pay. It is important to understand exactly what must occur between successive scheduled shifts in order to found a claim for premium pay. The phrase “called back to work” indicates that during this interval the employee must be notified of the requirement to work and must perform the work required. Both the notification of work and the performance of work must occur between consecutive scheduled shifts. Consider an employee who regularly works the day shift on Monday to Friday. Such a person would be entitled to premium pay if called on Saturday to work on Sunday, because both the call on Saturday and the work on Sunday fall between consecutive scheduled shifts on Friday and Monday. The same person would have no claim to such pay if called on Thursday night to work on Sunday, because a regularly scheduled shift on Friday falls between the call on Thursday and the work on Sunday. During a conference call held after I had reviewed counsels’ written submissions, they agreed with these comments about entitlement to call-back pay in the absence of a work stoppage.

In a non-strike scenario, shifts generating call-back pay typically are those assigned with relatively little notice. For an employee who normally works a day shift of eight hours, Monday to Friday, call-backs on a weekday would occur with less notice than the approximately sixteen hours between the end of the scheduled shift one day and the start of the scheduled shift the next, and call-backs on a weekend would occur with less notice than the approximately 64 hours between the end of the scheduled shift on Friday and the start of the scheduled shift on Monday. Even for an employee with a work-week of four days, the notice provided for a weekend call back would have to be less than the interval of approximately 84 hours between the end of the last scheduled shift in one week and the start of the first scheduled shift in the next. With these observations in mind, I conclude the purpose of the call-back premium is to compensate employees for the disruption to their personal lives caused, not merely by working unscheduled shifts, but by working such shifts on short notice.

In coming to this conclusion, I have not overlooked the possibility of an employee being entitled to call-back pay, in a non-strike scenario, for a shift worked with ample notice. For example, an employee called in to work in the midst of a four-week vacation might be entitled to premium pay, even though the notice given of this assignment is measured in weeks rather than days. Even if call-back pay would be owed in this setting, call backs rarely occur with so much notice in the absence of a work stoppage. These rare cases do not detract from the fundamental point that call-back pay was negotiated with the intention of compensating employees for the inconvenience of working on short notice.

The way call-back pay applies in the absence of a labour dispute should guide the application of this premium in the context of the recent work stoppage. For this reason, I reject both the position advanced by the employer and the one taken by the union.

Management’s approach would defeat the purpose of call-back pay by denying it to employees who worked an unscheduled shift on notice as short as a few hours. Conversely, the bargaining agent seeks to accomplish much more than this premium was intended to achieve. This point can be illustrated by using the example of correctional officers whose scheduled hours of work were radically different during the strike than before. They were divided into two cohorts, with each group rotating between two weeks of providing essential services and two weeks of performing emergency services as required. The recurring two-week interval between blocks of “scheduled” essential shifts created the potential for a significant number of “unscheduled” emergency shifts to be assigned with more than a few days notice. Consider a correctional officer who, on the first day of an emergency rotation, was directed to replace an essential worker during an absence expected to occur on the fourteenth day of the same rotation—the sort of scenario that actually did occur in Cousins. In this example, the emergency worker has thirteen days’ notice of the work assignment. Thirteen days far exceeds the typical notice of a call back in the absence of a strike. With so much notice, the assignment might reasonably be described as “scheduled”, even though the process used to “schedule” it differs from that normally utilized to assign regular hours of work. Yet the union’s argument would result in call-back pay being owed for work done with almost two weeks’ notice.

This analysis leads me to conclude call-back pay is owed to an essential or emergency employee for an unscheduled shift, if, and only if, it was worked with notice less than the maximum he or she could have received of a call back before the strike, when summoned to work between the last scheduled shift in one week and the first scheduled shift in the next.

Dated at Toronto, Ontario this 17th day of October, 2003.