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

Kelly Waddingham Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

November 25, 27 & 28, 2003.

Decision

This policy grievance claims stand-by or on-call pay for employees designated to provide essential or emergency services during the 2002 strike in the Ontario Public Service. The union contends all employees who received letters designating them as essential or emergency workers are entitled, by virtue of those letters, to either stand-by pay or on-call pay. In the alternative, the union argues essential and emergency workers governed by decisions of the Ontario Labour Relations Board (OLRB), relating to correctional facilities and psychiatric hospitals, are entitled to be paid for either stand-by or on-call, by virtue of those decisions. In relation to both arguments, the union claims pay for all hours not actually worked during the fifty-four days of the strike. The primary claim is for stand-by pay; on-call pay is claimed in the alternative.

On the first day of hearing, the parties asked me to answer four questions at this stage in these proceedings:

1. Did the designation letters require employee recipients to maintain a state of readiness which satisfied the criteria in the pre-strike collective agreement for determining eligibility for stand-by or on-call pay?

2. Did the decisions of the labour relations board require the employees governed by them to maintain a state of readiness which satisfied the criteria in the pre-strike collective agreement for determining eligibility for stand-by or on-call pay?

3. If emergency employees were required to maintain a state of readiness which would have entitled them to stand-by or on-call pay before the strike, did the requirement to maintain this state of readiness trigger the application of the pre-strike collective agreement to these employees in the context of the work stoppage? (The answer to this question hinges upon the proper interpretation of the “conditions document” which regulates coverage under the collective agreement during the strike.)

4. If an employee was covered by the pre-strike collective agreement during the work stoppage, and if he or she was required to maintain a state of readiness which would entitle him or her to stand-by or on-call pay in a non-strike scenario, would the failure of the employee to maintain that state of readiness, without proper justification, have disentitled him or her to stand-by or on-call pay?

When the hearing continued on the second day, counsel for the union conceded the answer to the fourth question was in the affirmative. The only issue remaining with respect to this question is what would constitute “proper justification” for failing to maintain the required state of readiness. No submissions were made on that issue. As to whether the criteria in the collective agreement were met, the employer reserves the right to call further evidence at a later date, depending upon the rulings made on the first two questions.

The designation letters received by most employees did not expressly mention stand-by or on-call, but some employees received letters explicitly telling them they would be on stand-by or on-call duty. The employer concedes these employees are entitled to be paid the appropriate premium for such assignments.

I

The provisions of the collective agreement relating to stand-by and on-call are the same for all bargaining units, save for the numbering of relevant articles. Those applicable to the administrative unit are ADM10 and ADM11. As to stand-by pay, article ADM10 states:

ADM10.1 "Stand-by Time" means a period of time that is not a regular working period during which an employee is required to keep himself or herself:

(a) immediately available to receive a call to return to work, and

(b) immediately available to return to the workplace.

ADM10.2 No employee shall be required to be on standby unless such stand-by was authorized in writing by the supervisor prior to the stand-by period, except in circumstances beyond the Employer's control.

ADM10.3 Where stand-by is not previously authorized in writing, payment as per Article ADMlO.4 shall only be made where the supervisor has expressly advised the employee that stand-by is required.

ADM10.4 When an employee is required to stand-by, he or she shall receive payment of the stand-by hours at one-half (1/2) his or her basic hourly rate with a minimum credit of four (4) hours pay at his or her basic hourly rate.

ADM11 governs on-call pay:

ADM11.1 "On-Call Duty" means a period that is not a regular working period, overtime period, stand-by period or call back period during which an employee is required to respond within a reasonable time to a request for:

(a) recall to the workplace, or

(b) the performance of work as required

ADM11.4 Should recall to the workplace be required the employee is expected to be able to return to the workplace within a reasonable time.

ADM11.5 No employee shall be required to be on-call unless such on-call duty was authorized in writing by the supervisor prior to the on-call period, except in circumstances beyond the Employer's control.

ADM11.6 Where on-call is not previously authorized in writing, payment as per Article ADM11.7 shall only be made where the supervisor has expressly advised the employee that he or she is on-call.

ADM11.7 Where an employee is required to be on-call, he or she shall receive one dollar ($1.00) per hour for all hours that he or she is required to be on-call.

Stand-by duty and on-call duty are analogous in three respects: (1) both oblige an employee to answer every call from the workplace; (2) both oblige an employee to work whenever called; and (3) as a logical corollary, both subject an employee to discipline for not fulfilling these obligations. The major difference between stand-by and on call is that the former requires an employee to maintain a higher state of readiness than the latter.

So long as employees are not subject to discipline for not answering every call or not working whenever called, the employer may require them to provide some level of “general availability” for work, without creating an entitlement to payment for either stand-by or on-call. In Ministry of Solicitor General and Correctional Services and OPSEU (Adams Group), G.S.B. No. 0389/97, decision dated March 20, 2000, I wrote:

In most of the cases mentioned by counsel, the grievors who claimed stand-by pay had already received on-call pay for the time in question. In other words, there was no dispute that they were required to maintain one of the two states of readiness described in the collective agreement. The only question was which one of these states applied as determined largely by the time frame for an employee to respond to a call. Stand-by duty requires a faster response than on-call duty. …

Of the cases cited, [OPSEU (Jones) and Ministry of Solicitor General and Correctional Services, GSB No. 1099/93, dated September 12, 1994 (Devlin)] is the only one to consider whether a grievor was required to maintain either of the states of readiness specified in the contract. The decision in that case rests upon a distinction between a requirement of "general availability", the term used by Ms. Devlin, and the sort of requirement giving rise to either on-call or stand-by pay. On any particular occasion, the grievor was permitted not to take a call and not to work if contacted. In other words, missing a call or refusing work would not result in discipline. This is why Ms. Devlin held he was not entitled to on-call or stand-by pay. Yet there was a requirement of "general availability", as Ms. Devlin noted. The employer had stressed the importance of being available on weekends. When the grievor had missed too many calls, his lack of availability was noted on his performance appraisal. In short, the grievor was required to be available a certain amount of time over the term of his contract. This requirement did not entitle him to on-call or stand-by pay.

There is a sound basis for the distinction drawn in Jones. Both on-call and stand-by pay are designed to compensate an employee for being available in case he or she is needed to work. The tacit assumption underlying each form of payment is that, throughout the period for which it is paid, an employee must take calls and must work if asked. As employer counsel argued, the collective agreement should not be interpreted so as to entitle an employee to payment for any period when he or she is permitted either not to receive a call or not to work if contacted. The grievor in Jones could miss a call or refuse work without being disciplined. Accordingly, he was not entitled to on-call or stand-by pay. (pages 16 and 17)

II

In a non-strike scenario, certain employees in some bargaining units are placed on stand-by or on-call duty, but such assignments are not made in other units. The units with stand-by or on-call duty are: (1) institutional and health care; (2) operational and maintenance; (3) technical; and (4) administrative. Stand-by or on-call assignments are not made in the two remaining units: office administration and correctional.

When the parties negotiated unit-level agreements for the provision of essential and emergency services, they followed the established pattern, creating a framework for stand-by and on-call duty in the units where such assignments normally were made and not in the others. The agreements for the office administration and correctional units made no mention of stand-by or on-call. In contrast, the Overarching Essential Services Agreement, dated January 10, 2002, for three units—institutional and health care, operational and maintenance, and technical—stated in paragraph 9:

It is understood and agreed that the normal collective agreement provisions covering “overtime”, “call back”,“stand-by” and “on-call” duty will continue to apply to all essential and emergency workers during a labour dispute. Employees on emergency status will be placed on either “stand-by”, “on-call” or “call back” status as authorized in writing by the Employer during the selection process held immediately prior to the commencement of the labour dispute.

Likewise, the Essential and Emergency Services Agreement for the administrative unit, dated December 11, 2001, stated in paragraph 5:

Should the Employer determine that an emergency worker will be placed on “standby” or “on call” as per the collective agreement, it will notify the Bargaining Teams and the appropriate union worksite representative prior to the selection process. The emergency worker will be notified after the selection process.

III

The same pattern was reflected in the designation letters sent to emergency workers, with respect to whether those letters expressly mentioned stand-by or on-call. There was no explicit reference to such assignments in the form letter sent to employees in the correctional and office administration units. The same form letter was sent to most employees in the other four units, but some employees in these units received a different form letter which did mention stand-by or on-call. Whatever form letter was used, each individual letter was signed by the recipient’s local manager.

The form letter sent to the vast majority of emergency workers contained no express reference to stand-by or on-call. It stated:

You have been designated as an Emergency Services worker in accordance with the Crown Employees Collective Bargaining Act, 1993, section 40 (2) and section 41 (1). The service you work in has been designated as an emergency service.

The definition of an essential service is in the Crown Employees Collective Bargaining Act, 1993 and is a service which is necessary to enable the Employer to prevent:

a) danger to life, health or safety; ,

b) the destruction or serious deterioration of machinery, equipment or premises;

c) serious environmental damage, or;

d) disruption of the administration of the courts or of legislative drafting.

During any work stoppage (strike or lock-out), if your manager determines there is an emergency situation for which you are required to report to work, you will be contacted with details of when and where to report to perform the emergency services work.

You are legally required to report to work when you are contacted and to perform the emergency services work assigned to you. If you do not report to work as required, you will be considered absent without pre-authorized leave, not be entitled to pay and may be subject to disciplinary action.

You will be informed of the hours you are expected to report to work, which may be intermittent, including coverage during off-hours throughout the week and weekend.

With the exception of Appendix 9 and Appendix 18, the collective agreement provisions shall apply when you are required to perform emergency services work. Bargaining unit or worksite essential services agreements define any specific terms and conditions of employment which will affect you as an emergency service worker.

If you leave your place of work and are subsequently called back to work prior to the starting time of your next scheduled shift, you will be paid call back as per Article 9 of your bargaining unit’s Collective Agreement.

Should you not report to work when contacted by the manager, or should the manager be unable to contact you, any premium payment you are receiving will be rescinded.

We recognize that strike and lockout situations can be stressful and emotional for everyone. We ask that during this period of labour disruption, you continue to exercise your professionalism, common sense and patience when performing the responsibilities assigned to you. In the event that you are delayed by pickets or feel that attempting to cross the picket line may jeopardize your health and safety you are to contact your manager to seek instruction.

If you have any concerns please feel free to discuss them with your manager. Thank you for your co-operation. (emphasis added)

Did this letter place emergency workers on stand-by or on-call duty for the duration of the strike? In the first three paragraphs, employees were told they had been designated to provide emergency services, the statutory definition of essential services was set out, and employees were informed they would be contacted when required to work.

The specific obligations imposed upon them are contained in the next two paragraphs of the designation letter. The fourth paragraph said an employee was “legally required to report to work when … contacted” (emphasis added). The word “contacted” connotes the successful transmission of a message from one person to another. There is no contact when a call is made but not received. For example, contact is made when a manager makes a telephone call to an employee’s home and he or she answers the phone, but there is no contact if the line is busy or the phone rings endlessly. Accordingly, this paragraph required employees to work when they received a message summoning them to work, without obliging them to ensure they were available to receive such a message.

The fifth paragraph told an employee that he or she would be “informed of the hours you are expected to report to work … including coverage during off-hours throughout the week and weekend” (emphasis added.) Off-hours must mean time when an employee was not scheduled to work. The juxtaposition of “coverage” and “off-hours” indicates “coverage” means some sort of availability for work during hours when an employee was not scheduled for duty. With the foregoing understanding of “off-hours” and “coverage” in mind, I read this paragraph as telling employees that they would be “informed” of two things: (1) the hours when they were scheduled to work; and (2) the non-working hours when they were expected to be available for work in case their services were needed. This paragraph clearly implies that an employee need not be available for work, outside of scheduled hours, unless later told to be available for a particular period.

Reading paragraphs 4 and 5 together, I conclude the designation letter sent to most emergency workers told them they might subsequently be instructed to be available for duty at certain times, but the letter itself did not require them to be available, let alone require them to maintain the specific level of availability corresponding to stand-by or on-call duty.

IV

All essential workers received the same form letter. It contained no express reference to stand-by or on-call. Here too all individual letters were signed by the recipient’s local manager. The form letter stated:

You have been designated as an Essential Services worker in accordance with the Crown Employees Collective Bargaining Act, 1993, section 40 (1 ), 40 (2) and section 41 (1). The service you work in has been designated as an essential service.

The definition of an essential service is in the Crown Employees Collective Bargaining Act, 1993 and is a service which is necessary to enable the Employer to prevent:

a) danger to life, health or safety;

b) the destruction or serious deterioration of machinery, equipment or premises;

c) serious environmental damage, or;

d) disruption of the administration of the courts or of legislative drafting.

As an essential services worker, you are legally required to report to work during any work stoppage (strike or lock-out), and to perform the essential services work assigned to you in accordance with the worksite agreement. If you do not report to work as required, you will be considered absent without pre-authorized leave, not be entitled to pay and may be subject to disciplinary action. You will be informed of the hours you are expected to report to work, including coverage during off-hours throughout the week and weekend.

With the exception of Appendix 9 and Appendix 18, the collective agreement provisions shall apply when you are required to perform essential services work. Bargaining unit or worksite essential services agreements define any specific terms and conditions of employment which will affect you as an essential service worker.

We recognize that strike and lockout situations can be stressful and emotional for everyone. We ask that during this period of labour disruption, you continue to exercise your professionalism, common sense and patience when performing the responsibilities assigned to you. In the event that you are delayed by pickets or feel that attempting to cross the picket line may jeopardize your health and safety, you are to contact your manager to seek instruction.

If you have any concerns please feel free to discuss them with your manager

The last sentence in the third paragraph of this letter is almost identical to the fifth paragraph of the emergency designation letter. Here too, employees were told they would be “informed of the hours you are expected to report to work including coverage during off-hours throughout the week and weekend” (emphasis added). Once again, the form letter indicated two things would be communicated to employees: (1) the hours when they were scheduled to work; and (2) the non-working hours when they were expected to be available for work in case their services were needed. The letter itself did not require them to maintain any specific level of availability for work, although it did say they might subsequently be instructed to maintain some such level at certain times.

V

The union relies upon five decisions issued by the OLRB. The first decision, Crown in Right of Ontario and OPSEU, [2002] O.L.R.D. No. 1170, dated March 26, 2003, dealt with nurses at four psychiatric hospitals: Lakehead, North Bay, Whitby and Penatanguishine. The decision required the following notice to be provided to all emergency workers at these facilities:

The four psychiatric hospitals in the Ontario Public Service have encountered difficulties in maintaining the required level of staffing during the current strike.

The level of staffing was agreed to by OPSEU and the Hospitals in the essential services agreement. In that agreement, they both agreed that there was a joint responsibility to try to ensure that sufficient bargaining unit employees are available to perform the necessary work.

The Ontario Labour Relations Board has issued a decision, a copy of which is attached to this Notice setting out what sort of cooperation is required. All Registered Nurses and Registered Practical Nurses should be aware of the following:

Employees who are essential services or emergency workers must attend every shift for which they are scheduled, or for which they are called in, unless prevented from doing so by a serious and unforeseen emergency such as an incapacitating illness.

No employee who is an essential service or emergency worker shall restrict his or her availability for work, or attempt to create a situation where there are fewer staff available than agreed to under the essential services agreement negotiated by OPSEU and the Hospital.

All persons employed as RN's or RPN's who have been given notice as essential or emergency workers under the essential services agreement are hereby directed to advise the Union and the hospital in which they work of the hours they will be available to work outside of and beyond their regularly scheduled hours. All such employees shall do so before 10:00 a.m. on Friday March 29, 2002. All such employees are directed to make reasonable efforts to be able to receive notice from their employer of a need to report to fill in for an absent employee, and to attend at those shifts if called in to work in the place of an absent employee. (emphasis added)

The first paragraph of the notice stated nurses “must attend every shift … for which they are called in” unless prevented from doing so by an emergency (emphasis added). The meaning of “called in” is not as clear as the meaning of “contacted.” When a manager’s phone call to an employee produces a busy signal, he or she has not been contacted, but reasonable people might hold different opinions as to whether the employee has been called in. Some might think the employee had been called in because the call had been made, whereas others might think the employee had not been called in because the call had not been received. The former interpretation would oblige an employee to work whenever a call was made, whereas the latter would oblige him or her to work only when a call was received. As both interpretations are plausible, the first paragraph is ambiguous as to whether employees were required to be available to receive calls made to them by a manager.

This ambiguity is resolved by the last paragraph. It set out two requirements nurses must satisfy: (1) they were told “to advise” the employer of “the hours they would be available to work outside of … their regularly scheduled hours”; and (2) they were told “ to make reasonable efforts to be able to receive notice … of a need to report … and to attend …if called in.” The relationship between these two requirements is not expressly stated in the notice, but the most plausible interpretation is that the second requirement to make “reasonable efforts” applied only to the hours of availability specified by a nurse in satisfaction of the first requirement. I reject the contrary interpretation because it would oblige a nurse to make “reasonable efforts” outside the hours of availability specified by her, thereby rendering meaningless the obligation to specify hours of availability. In short, the notice placed a nurse under no obligation to be available for work, on short notice, outside of the hours of availability specified by her.

During the hours of availability specified by a nurse, she was obliged “to make reasonable efforts to be able to receive notice … of a need to report … and to attend …if called in.” As “reasonable efforts” to achieve an outcome do not guarantee it will be achieved, the requirement to make such efforts to receive notice and to work is best understood as not obliging a nurse to answer every call or to report for duty every time she was contacted. The last paragraph required a nurse to make reasonable efforts to receive notice and to work when contacted, but did not oblige her to ensure she would receive every call and work every time a call was received.

The notice told nurses to maintain the sort of general availability required in the Jones and Adams cases, but they were not required to maintain a state of readiness equivalent to that specified in the stand-by or on-call provisions in the pre-strike collective agreement.

VI

There are four OLRB decisions involving five correctional facilities. In the first decision, Crown in Right of Ontario and OPSEU, [2002] O.L.R.D. No. 1136, dated April 19, 2002, the Labour Relations Board addressed the situation at jails in Chatham and Lindsay. This decision required a notice to be provided to all emergency workers at these two facilities; the notices relating to both jails are identical save for the name of the institution. The Chatham notice states:

The Chatham Jail has encountered difficulties in obtaining emergency workers to replace essential services workers who are absent from their shift due to illness or other causes.

Under the essential services agreement emergency workers are required to fill in for absent essential services workers and to work during emergencies. The Union and the Employer have a joint responsibility to ensure that emergency workers are available to perform the necessary work.

The essential services agreement provides that, when notified by a worksite manager, employees who are on the emergency workers list, are to report to work as directed and to perform the emergency work or the work of an absent essential services worker.

It is a violation of the essential services agreement and of the Crown Employees Collective Bargaining Act for employees to make themselves unavailable for call in as emergency workers. Engaging in such action may expose employees to discipline as employees or may cause the Board to make certain orders against OPSEU and/or the employees involved.

All emergency workers are required to respond to telephone calls from managers requesting them to come in to work. Emergency workers must at a minimum speak to the manager who called as soon as the employee is advised that the Jail has attempted to get in touch with him or her.

If an employee has opted out of the essential services rotation but is in the emergency worker list with restricted availability, such employee is required to keep the Jail notified of the times when he or she is available for work. The Jail is entitled to assume you will be available for the times you have specified. If any emergency worker has not indicated a restriction on his or her availability for legitimate reasons, the Jail is entitled to assume that such an employee is available at any time for emergency work. (emphasis added)

The same notice, with only the name of the correctional facility changed, was subsequently issued to employees at two other institutions. The unreported decision requiring this notice to be issued to employees at the Niagara Detention Centre, Crown in Right of Ontario and OPSEU, O.L.R.B. No. 3556-01-M , is dated April 22, 2002. The decision requiring this notice to be issued to employees at the Hamilton Wentworth Detention Centre, Crown in Right of Ontario and OPSEU, [2002] O.L.R.B. No. 1310, is dated April 26, 2002.

Paragraphs two through five of the notice set out the obligations of most emergency workers at the four sites. The second and fourth paragraphs spoke in general terms. The second said employees designated to provide emergency services were “required to fill in” for an absent essential services worker and the fourth said they were not “to make themselves unavailable for call in.”

The third and fifth paragraphs provided greater specificity. The third required an emergency worker “to report to work” when “notified by a manager” of the need to do so (emphasis added). The fifth paragraph states an employee must respond to a manager’s phone call “as soon as the employee is advised that the Jail has attempted to get in touch with him or her” (emphasis added). Like “contacted”, the words “notified” and “advised” connote the successful transmission of a message from one person to another. Accordingly, the obligations set out in the notice would have been met fully by an employee who was out when a manager called, did not learn of the call until several hours later, and then returned it promptly. There was no requirement to be available to receive a call or to answer one within a specific time frame after it had been made by a manager. All that was required of an employee was to answer a call as soon as he or she became aware of it.

Paragraphs two through five required emergency workers to maintain the sort of general availability discussed in the Jones and Adams cases. Nonetheless, they were not obliged to respond to every call from the workplace.

The sixth paragraph applied only to a relatively small group of emergency workers at the four facilities—i.e. those who had “opted out of the essential services rotation” but were “in the emergency worker list with restricted availability.” Such an employee was required to inform the employer of “the times when he or she is available for work.” This paragraph goes on to say the employer was “entitled to assume” an employee was “available for the times …specified.” If an employee did not indicate a restriction on his or her availability, he or she would be assumed to be “available at any time.” During the hours specified by employees in this group, or at any time in the absence of such specification, they were required to maintain general availability. However, like the other correctional employees governed by the notice, they were not obliged to respond to every call from the workplace.

This analysis leads me to conclude the notice did not require emergency employees at the four correctional facilities to maintain a state of readiness equivalent to that specified in the provisions of the collective agreement relating to stand-by or on-call pay

VII

A notice with different wording was provided to employees at the

Stratford Jail pursuant to a Labour Relations Board’s decision, Crown in Right of Ontario and OPSEU, [2002] O.L.R.D. No. 1199, issued on April 30, 2002. The notice states:

The Stratford Jail has encountered difficulty in obtaining emergency workers during the present lawful strike.

Under the Essential Service Agreement emergency service workers are required to fill in for absent essential service workers and work during emergencies. According to part C5 of the Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations, Union has an obligation to cooperate with the Employer to obtain a replacement where one is required due to the temporary or permanent absence of bargaining unit essential or emergency employees.

The Union and the Employer remind Emergency Service Employees that they are not to improperly restrict their availability for work. To facilitate this process, the Union and the Employer jointly request that all emergency service workers advise the Employer of any times at which they are not available. The Employer advises that it will accommodate legitimate reasons for unavailability.

The Union and Employer remind all emergency service workers that they are expected to make reasonable efforts to be available to receive notice from the Employer or the Union of a need to report to fill in for an absent employee or for an emergency. When notified of an emergency, emergency workers are expected to make reasonable efforts to attend those shifts. (emphasis added)

General obligations were found in paragraph two, saying emergency workers “are required to fill in for absent essential workers”, and in paragraph three, telling emergency workers “not to improperly restrict their availability.”

The fourth paragraph was more specific and required them to make “reasonable efforts” both to receive a call from the employer and to report for work when called. As reasonable efforts to achieve an outcome do not guarantee it will be achieved, the requirement to make “reasonable efforts” to receive notice and to work did not oblige correctional workers to answer every call and to work every time they were called.

Like emergency workers at other correctional facilities, those at the Stratford Jail were required to maintain the sort of general availability discussed in the Jones and Adams cases. However, the notice did not require them to maintain a state of readiness equivalent to that specified in the provisions of the collective agreement relating to stand-by or on-call pay.

VIII

In summary, the answers to the first two questions are:

1. The designation letters received by emergency and essential workers did not require them to maintain a state of readiness which satisfied the criteria in the pre-strike collective agreement for determining eligibility for stand-by or on-call pay.

2. The decisions of the labour relations board did not require the employees governed by them to maintain a state of readiness which satisfied the criteria in the pre-strike collective agreement for determining eligibility for stand-by or on-call pay.

Given these rulings, there is no need to answer the third and fourth questions. The grievance is dismissed.

Dated at Toronto this 26^th day of January 2004.