GSB#2007-1773
UNION#2007-0526-0016
Additional Files – Appendix ‘A’
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McGann et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Anastasios Zafiriadis and Stephen Giles Ontario Public Service Employees Union Grievance Officers
FOR THE EMPLOYER
Len Hatzis Ministry of Government Services Counsel
HEARING
May 6, 2009.
DECISION
1These proceedings concern a number of grievances that raise issues concerning Appendix 32 to the 2005-2008 collective agreement and/or subsequent agreements of the parties concerning that Appendix 32. Appendix 32 was a new provision in that collective agreement. It established the “flexible part-time” category of classified employment for court workers who might otherwise have remained irregularly scheduled unclassified staff. It described a process by which a number of unclassified court workers would be converted to FPT status and defined the terms and conditions of employment unique to this category of classified employee.
2Since the last hearing day in these matters, the parties have resolved their dispute about whether Article 22.16 applies to these proceedings. They have agreed that it does apply. Among other things, that Article provides that
22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.
22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.
The parties have also “agreed otherwise” under Article 22.16.7 concerning the “precedential value” to which that article refers.
3The parties have endeavoured to identify issues of general application raised by these grievances, with the intention of having each such question heard and determined in the context of a specific grievance or grievances on agreed or at least undisputed facts and without the necessity of witnesses. To the extent they have succeeded thus far, it has greatly assisted in expediting the hearing of matters that cannot be resolved by mediation. Such an endeavour does require, however, that presenters restrain themselves from including in their arguments assertions of fact that are not agreed upon or undisputed by the opposite party.
4In order to define the factual issues in the grievances and determine what facts, if any, were actually in dispute, the parties agreed on a pre-hearing exchange of written particulars pursuant to a consent order of December 1, 2008. The order provided that
With respect to each act or omission alleged therein, each party’s written particulars shall state what it says was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. Conclusory statements based on unparticularized allegations of fact are not sufficient and do not constitute particulars for purposes of this order. The allegations of fact set out in a party’s particulars should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit that all of those allegations of fact were true.
The order also provided that
A party who fails to … provide particulars of an allegation in accordance with this order may not … present evidence about that allegation in these proceedings without leave.
The order required that the union deliver particulars of the allegations of fact on which it intended to rely in connection with the grievances in these proceedings, that the employer then deliver particulars of the allegations of fact on which it intended to rely in response and, finally, that the union then deliver particulars of any allegations of fact on which it intended to rely with respect any factual issue first raised in the employer’s particulars.
5In what follows I set out each question of general application that was raised and argued at the hearing of May 6, 2009, the answer I gave at that hearing and my reasons for that answer. I also note and explain as necessary the disposition of the grievances that were offered to illustrate and provide context for the questions.
Question 1
“In and of itself, is there any requirement in the collective agreement or any applicable MoS or MoA for the employer to schedule FPT staff to any particular court, courtroom, court proceedings or judicial official?”
Answer: “No.”
6The grievance offered to illustrate and provide context for this question is that of Francine Mehlenbacher in GSB File #2007-3357. The particulars provided by the union for this grievance are as follows:
Ms Mehlenbacher works at the Chatham Courthouse. During the period relevant to the events giving rise to this grievance, she was in a deficit with respect to her hours. On November 13, 2007, she was ordered by her supervisor Nicole Brigley to report for work at the Sarnia Courthouse, on the following Monday, November 20. This assignment would require Ms Mehlenbacher to travel a distance of 80 kilometres. Ms Mehlenbacher refused to travel to Sarnia and told her supervisor she believed there was work available in Chatham, where she would report for work as usual at 8:30 on November 20. Ms Mehlenbacher was told that if she did not obey this order, she could potentially be disciplined for insubordination and Ms Brigley repeated her direction to report to work in Sarnia. On November 20, Ms Mehlenbacher reported for work at Chatham at 8:30 and was sent home without pay. She subsequently received a letter of reprimand. Ms Mehlenbacher states that work was available in Chatham and she lists a number of tasks that she could have performed, including replacing a staff member who was absent on November 20, 2007. (Note: these tasks all appear to be administrative and office work, not court reporting.)
Remedy A day’s pay for November 20 and the removal of the letter of reprimand from the grievor’s file.
I note that these particulars do not allege that work the grievor “could have performed” at the Chatham courthouse on November 20th was performed that day by someone with a claim to it less worthy than the grievor’s, or that the grievor was in any way unable to attend and perform the work assigned.
7For purposes of this decision it is not necessary to recite the employer’s particulars verbatim. I note simply that they set out the reasons that the grievor was scheduled to work in the Sarnia courthouse on the day in question, which included a shortage of staff at that courthouse. They also included the fact that, pursuant to the special provisions that govern FPT employment, up to that point in the year the grievor and other FPT’s at the Chatham courthouse had been paid for more hours than they had actually worked, and the employer was trying to reduce that “deficit.” The union did not deliver reply particulars. It did not challenge the bona fides of the employer’s reasons for giving the order. It only questioned the employer’s right to give the order and its having disciplined the grievor for disobeying it.
8Dealing first with the latter point, it is well settled that when an employee believes that an order she has been given is contrary to the collective agreement she should “work first and grieve later.” That fundamental rule is described in Brown & Beatty, Canadian Labour Arbitration (4th edition) at ¶7:3610:
7:3600 Insubordination
7:3610 Refusal to follow instructions
One of the most basic and long-standing rules of arbitration law is that employees who dispute the propriety of their employers’ orders must, subject to the considerations that follow, comply with those orders and only subsequently, through the grievance procedure, challenge their validity. This general principle, which requires employees to “work first and grieve later”, has been applied in industrial, educational and hospital settings, and to professional employees. …
There are exceptions to this rule, as the passage quoted implies, but the union does not argue that any such exception applies in these circumstances. Accordingly, the grievor’s conduct was clearly insubordinate, and cause for discipline.
9The employer imposed a warning letter as discipline for the grievor’s insubordination. It noted in that letter that her failure to attend work in Sarnia as scheduled was being treated as an unauthorized, unpaid leave and that the day would be without pay. It warned her that her conduct had been insubordinate, and that if she engaged in similar conduct in future, further discipline up to and including dismissal might be considered.
10The union asked me to direct that the employer substitute a letter of counsel, in the exercise of my discretion to substitute a lesser penalty. A letter of counsel is non-disciplinary and not a “penalty.” It would not be appropriate, nor within the Board’s jurisdiction, to direct that the employer substitute a non-disciplinary response to this disciplinable conduct. There is no lesser penalty: the union acknowledges that a warning is the mildest form of discipline that the employer could have imposed. Having read the warning letter, I concluded that the employer had not breached the collective agreement by imposing it. The grievor did not perform work at the assigned work location on the day in question, and her uninvited attendance at another location created no right to compensation. I therefore dismissed the grievor’s claims to a day’s pay for November 20 and the removal of the letter of reprimand from the grievor’s file.
11On the question whether the assignment complained of was contrary to the collective agreement, the union’s argument focused on section 3 of Appendix 32. That section provided as follows:
It is understood that assignment of employees to annual hours categories shall be determined by the Ministry, by taking into account factors such as courtroom utilization hours, employees’ historical unclassified hours of work (exclusive of training hours) and employer’s operational needs.
An employee’s total number of recorded unclassified hours shall be taken into account by the Employer as a factor when an employee is transferred to a different annual hours category.
The first year of implementation will require a joint review that may give rise to minor staffing adjustments.
The parties shall establish a joint committee consisting of four representatives from each of the Employer and the Union.
This committee is established for the sole purpose of assisting the Ministry in assigning employees to the hours tiers and the consultations contemplated under Section 2.
12The union asserted in its argument that the assignments that the employer made under this provision were assignments to particular courthouses, that the courthouse to which an FPT employee was assigned was her/his headquarters, that those assigned to a courthouse have the “right” to work there and that the employer has no right to assign them to work anywhere else, even temporarily. The union made no suggestion that any other provision of the collective agreement supported this argument.
13The premise of the union’s argument – that each assignment to FPT status was an assignment to a particular courthouse – has no foundation in the language of the provision on which the union relies, is not agreed to by the employer and is not even alleged as a fact in the union’s particulars. In any event, if the courthouse at which an employee usually works is his/her “headquarters” for collective agreement purposes (which is apparently disputed), it might well follow that temporary relocation to another workplace would attract entitlements with respect to travel time, travel costs, meals and so on, but not that the employer would have no right to make the assignment at all. The management rights acknowledged by the union in Article 2 of the collective agreement include the “right and authority to manage the business and direct the workforce, including the right to … determine … the location of the workplace … .” The union has expressly agreed in that Article that “these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.” Whatever the collective agreement may say about payment for travel time, travel costs, meals and so on, the union identified nothing in it that precluded the employer from making the assignment in issue. Accordingly, the answer to Question 1 was “No.”
14Having thus addressed all the issues raised by the grievance in File #2007-3357, I dismissed that grievance.
Question 2
“In and of itself, is it a violation of the collective agreement or any applicable MoS or MoA for the employer to assign different set up and take down times to Court Monitors (CR1’s) vs. Court Reporters(CR2’s)?”
Answer: “No.”
15The grievance offered to illustrate and provide context for this question is a group grievance by employees in Brampton: Anne Pecaric et al., GSB File #2008-0805. It is undisputed that in Brampton Court Monitors (CR1’s) receive fifteen (15) minutes for set-up before court and Court Reporters (CR2’s) receive thirty (30) minutes for set-up.
16The argument that the union’s representative sought to make at the hearing was that the employer’s exercise of its management rights in assigning these different set-up times was “unreasonable” because, he said, the only difference between the set-up work of Court Monitors and that of Court Reporters was the cleaning of a steno mask which, he said, does not take 15 minutes. The factual premises of this argument – that the only additional setup work of a CR2 is the cleaning a steno mask and that such cleaning does not take 15 minutes – were not agreed facts and, critically, had not been alleged in the union’s particulars.
17The particulars delivered by the union were as follows:
The Court Monitor’s [sic] (CR1’s) receive fifteen (15) minutes for set-up time before court in Brampton. The Court Reporter’s [sic] (CR2’s) receive thirty (30) minutes set-up time before court in Brampton. The two different times are not fair.
REMEDY: The Court Monitor’s [sic] (CR1’s) receive thirty (30) minutes for set-up up time and not fifteen (15) minutes.
The statement that “[t]he two different times are not fair” is not a particularized allegation of fact. The decision of December 1, 2008 clearly stated that “[c]onclusory statements based on unparticularized allegations of fact are not sufficient and do not constitute particulars for purposes of this order” and, further, that no evidence could be led about any unparticularized allegation of fact that a party might later attempt to prove in support of such a statement. Such a statement cannot be used as a proxy or placeholder for allegations of fact that could be but are not made in the particulars. Adding the words “[t]he two different times are not fair” to the particulars in the first two sentences did not reserve for the authors of those particulars the option of later expanding the factual issues beyond the facts they had otherwise chosen to set out in the particulars.
18I can only suppose that these particulars reflect the best the union’s representatives were able to get from the grievors as a response to the agreed upon requirement that full, detailed particulars be provided. It is difficult to imagine that anyone, certainly not anyone acquainted with court proceedings, could have imagined that this was a sufficient response to that requirement, especially not if they expected the union to make the argument its representative eventually sought to make at the hearing or, indeed, any serious argument. Faced with that requirement and the language with which it was described, it was disrespectful of the authors of the particulars to fail to identify in them any facts from which one might conclude that the difference in set up times was “not fair” – disrespectful to the union, disrespectful to the employer and disrespectful to this Board. The hard work and imagination with which the union’s representatives customarily present cases to the Board could not be expected to overcome the crippling effect of refusal by others involved to take the process seriously and do their part in abiding by its pre-hearing requirements.
19No doubt because it did not wish to seem similarly disrespectful, the employer delivered particulars. In retrospect, this was unnecessary: the grievors’ bald claim of unfairness did not shift to the employer any burden of demonstrating that the difference in setup times was “fair.”
20Nevertheless, the employer’s particulars stated that the pre-court set-up tasks of CR2’s are different from those of CR1’s because of differences in the functions they perform and the courts in which they perform them. Several different and additional functions of CR2’s were described including, but not limited to, the setup of either steno mask equipment (including cleaning the mask) or stenotype equipment, neither of which are used by CR1’s. The employer further stated that these differences in set-up times have “always been the practice” in the judicial district in which the Brampton courthouse is located. The employer’s particulars do not support in any way the notion that the only quantitative or qualitative difference in tasks is cleaning of a steno mask or that such cleaning takes substantially less than 15 minutes.
21Without suggesting that when it came time to deliver a reply to the employer’s particulars the union would have been entitled to allege particulars that it could have but had not alleged in the particulars it had delivered first, I note that the union did not deliver any particulars at all in reply to the employer’s particulars.
22Leaving aside the significant legal hurdles that the union’s argument would have faced1 if its factual premises had been agreed or proven or assumed true for purposes of argument, in the circumstances an argument based on those factual premises was simply “out of bounds” in the process on which the parties had agreed. Thus, the question I was called upon to answer was quite literally “In and of itself, is it a violation of the collective agreement or any applicable MoS or MoA for the employer to assign different set up and take down times to Court Monitors (CR1’s) vs. Court Reporters(CR2’s)?” On what was properly before me, the answer to this question was clearly “no.” Accordingly, the grievance in GSB File #2008-0805 was dismissed.
Question 3
“Do the morning and afternoon reporting pay provisions as per the Carvelho [sic] and Corcoran awards apply to FPT staff?”
Partial Answer: “FPT staff are not entitled to a minimum number of after lunch work hours merely because they are expected to and do return to work after lunch.”
23Grievances in Carvalho et al., 1994-0871 etc., were settled in March 2000 by an agreement of the parties. The parties asked Vice-Chair Abramsky to incorporate their agreement in a decision of the Board, and she did. Grievances in Corcoran et al., 2001-1635 etc., were settled by the parties in October 2002. Their settlement was an agreement about the meaning and effect of the earlier agreement by which they had settled Carvalho et al. The parties again asked Vice-Chair Abramsky (who had been pre-seised under the Carvalho agreement with any disputes that might arise under that agreement) to incorporate their agreement in another decision of the Board, and she did. Thus, “Carvelho and Corcoran awards” is simply a shorthand description of two related agreements of the parties.
24The Carvalho agreement required that the employer issue a policy concerning the treatment of unclassified court support staff. That policy included the following:
REPORTING PAY
a) Where an unclassified court staff (Court Reporter, Court Room Clerk, Court Registrar, Courtroom Clerk/Monitor and Court Service Officer the “Staff “ or the “Employee”) reports for work at his or her scheduled reporting time and it is subsequently determined by management that there is no work available, as an employee in a Court proceeding, the employee shall receive two (2) hours reporting pay, pursuant to the terms of the collective agreement, and shall be free to leave the workplace.
DOWN TIME DURING THE COURT DAY
c) During down time, the period of time between court sittings, excluding a maximum of one hour for lunch and for normal before and after court work, staff (as defined above) shall be responsible for advising their respective Manager or Supervisor of Court Operations (the “Manager”) of their status. Where work is available, which is not work as an employee in a Court proceeding, the manager shall offer the work to the employee. The employee may refuse the work. If there is no work, which is not work as an employee in a Court proceeding, or where the employee refuses the assignment the employee shall be responsibility free and shall not be paid until such time as the court to which they are assigned reconvenes. On the employee’s return to work the employee shall he guaranteed a minimum of two hours of work, as an employee in &Court proceeding, or pay in lieu thereof,
Where work is available during the down time, which is work as an employee in a Court proceeding, the manager shall assign the employee to the work and the employee shall not have the right to refuse the assignment.
The policy on down time shall not apply to court staff working at a satellite court away from their base
25The Corcoran agreement elaborated on the reporting pay provisions of the Carvalho agreement:
Reporting Pay
Reporting pay, as described in the Carvalho order (GSB#0871/94. 1461/98, 0945/99) will be paid under the following circumstances:
The employee must commence work in a courtroom in a court proceeding.
The court must be adjourned for a period of time longer than the 60-minute lunch break, not including the approved paid set-up and take down times. A break which includes a 60-minute lunch and approved paid set-up and take down time does not trigger reporting pay as set forth in the Carvalho order. A break in excess of that will trigger reporting pay.
Following the adjournment, the employee must report to his/her supervisor and advise the supervisor that the court has been adjourned and that he/she is available for work. The supervisor must then offer work to the employee, if work is available. if the offered work is as an employee in a court proceeding, that employee must perform the work. if the offered work is not the work of an employee in a court proceeding, the employee may choose whether or not to perform the work. This paragraph is not intended to usurp an employee’s 60-minute responsibility free lunch break.
If the employee performs the offered work, the employee will be paid for all of the hours worked.
If there is no work offered, or the employee declines the work the employee will be considered responsibility free and will not be paid for the responsibility free period. The employee will, however, be paid for a minimum of two hours upon return to an assigned court proceeding. The parties agree that assignment to a different courtroom does not trigger reporting pay unless there has been a break in proceedings as described above in paragraph 2.
26If the question to be answered is literally whether the provisions of these agreements “apply” to the payment of FPT employees then the answer is clearly “no.” By their terms, the agreements apply only to unclassified court support staff. FPT employees are classified staff. As the parties argued it, however, the question is really whether FPT employees have the same entitlement to reporting pay as unclassified employees would have had in similar circumstances under the provisions of the Carvalho and Corcoran agreements.
27There were problems with the particulars of the grievances that the parties had thought would illustrate and provide context for this question. The union’s allegations of fact were unclear and, in any event, disputed in material respects. It would not be helpful to recite those problems and catalogue the twists and turns through which the hearing navigated in an attempt to find a useful factual context for this question. In the result, pending resolution of those difficulties, the parties argued a question of interpretation that focused on whether an FPT employee who begins her/his unpaid lunch period (of between one-half hour and one hour) expecting and expected to work again after lunch is entitled to a minimum of two hours’ paid work after lunch. Whatever question there is about a “morning” reporting allowance was left to another hearing date pending clarification of the particulars in the grievance said to illustrate it.
28The union argued that an FPT employee who begins her/his unpaid lunch break expecting and expected to return to the work after that break is entitled to a minimum of two hours paid work after the break, pursuant to Article 7 of Appendix 32. That article reads as follows:
SECTION 7 – ADDITIONAL REPORTING ALLOWANCE
Where an employee reports for work at his or her scheduled starting time and work is not available, or the work is less than two (2) hours, he or she shall receive two (2) hours’ credit towards his or her annual assigned hours.
This shall not apply where the employee has been notified, at least one (1) hour prior to his or her scheduled starting time, not to report for work.
Where the employee has been directed to return to work on the same day and there is no work or less than two (2) hours of work, he or she shall receive an additional two (2) hours’ credit towards his or her annual assigned hours.
The union submitted that the third paragraph Article 7 of Appendix 32 “mirrors” the provisions of the Carvalho/Corcoran agreements under which it says an unclassified employee would have had a guarantee of two hours’ work after lunch.
29The third paragraph of Article 7 clearly does not “mirror” the pertinent provisions of the Carvalho/Corcoran agreements in the ordinary sense of that word: the language used is not the same or even substantially similar. The argument really was that the language of that paragraph had the same intent and achieved the same result as the language of the Carvalho/Corcoran agreements, despite the evident differences in language..
30As the employer stated in its argument, Appendix 32 was a comprehensive new agreement concerning the employment of workers who, unlike unclassified employees, would have (among other things) classified status, seniority for all pertinent purposes, a guaranteed minimum number of work hours in the year and corresponding minimum periodic wages. Appendix 32 was clarified by the parties’ subsequent agreement of September 13, 2007, which elaborated on the employer’s obligation to provide work to these FPT employees and confirmed the FPT employees’ corresponding obligation to perform work of an administrative nature as needed, including during post-lunch court “down time.”
31An FPT employee does not have the option contemplated by paragraph 3 of the Corcoran agreement of declining to perform administrative work offered when her lunch period ends before the court proceedings in which she has been working resume. Even under that agreement, it seems, the interruption of the work day by an unpaid lunch break of no more than one hour was not enough, without more, to trigger a guarantee of minimum post-lunch or afternoon work hours. In any event, if the parties had intended to “mirror” the provisions of the Carvalho/Corcoran agreements, they could have used the language that they had used in those agreements. The language they did use is substantially different.
32I agreed with employer counsel that a return to work of the sort contemplated in the phrase “directed to return to work on the same day” does not include an employee’s recommencing work after an ordinary lunch break. No direction need be given to “return” from a lunch break, unless the lunch break is preceded by a supervisor’s specific direction not to return at the end of it. An express direction to return in the latter circumstances would be an example of the sort of directed return to work to which the paragraph would apply: a return during the same day directed after the employee has been dismissed for the day.
33For these reasons I gave the partial answer noted above. The parties agreed that this answer disposed of the grievances of Marlene Hollingsworth in Board Files 2008-0195 and 2008-0196, which were dismissed accordingly.
Question 4
“Is there any violation of the collective agreement or the Memorandum of Agreement dated September 13, 2007, if after a one (1) hour lunch break, or less as per current local practice, the FPT employee is assigned to perform administrative duties until the assigned court reconvenes?”
Answer: No.
34The union agreed with the employer that the answer to this question was “no.”
Question 5
“Is there any violation of the collective agreement or the MoA dated September 13, 2007 if the FPT employee is assigned to perform administrative duties until their minimum daily hours are met or exceeded, which could result in less than two hours of work after the lunch break?”
Answer: “No.”
35The union agreed with the employer that the answer to this question is “no.”
Question 6
“If the answer to question 5 above is yes, would an employer position that FPT employees are not entitled to decline to do any work and still be paid a two (2) hour “afternoon minimum” violate the collective agreement or any other applicable MoA or MoS?”
Answer: Not applicable.
36Since the answer to question 5 is “no,” the parties agreed that this question need not be answered.
Question 7
“In and of itself, does the Collective Agreement Article UN 9 — Call back apply when an FPT employee is reassigned to work in another court location on a day that the employee has been scheduled to work?”
Answer: “No.”
37Three grievances were offered to illustrate and provide context for this question: those of Marlene Hollingsworth (2008-1821), Ginnette Motiak (2008-1822), and John Reid (2008-1823). A fourth was settled.
38All three grievances arise out of events of July 18, 2008, about which there is no factual dispute. Each of the grievors was scheduled to commence work at the Welland courthouse at 10:00 a.m. that day, on a Superior Court matter. After they arrived at work, at 9:45 a.m. the court support supervisor told each grievor that the Justice on the Welland matter would only be sitting for a short time and would then be moving to St. Catharines to hear another matter. Each grievor was then directed that he or she was to move to and work at St. Catharines along with the Justice, as there were no St. Catharines staff available. The grievors’ travel between courthouses took place during their paid working hours: they got full credit for all their travel and court time.
39The union takes the position, however, that the direction to move to and work at another courthouse amounted to a “call back” for which the grievors were entitled to additional compensation under Article UN9 of the collective agreement:
ARTICLE UN 9 - CALL BACK
UN 9.1 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.
UN 9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of his or her next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one and one-half (1½ ) times his or her basic hourly rate. The initial call and any subsequent calls during that same four-hour period, will be treated as a single “call back to work” for pay purposes.
40Article UN 9 identifies the pay consequences when an employee who has left work at the end of a shift and is “subsequently” — that is, after her scheduled work has ended and she has left her workplace for the day — called “back” to start work at a time earlier than the start time of her next scheduled shift. Here, the grievors had a single work shift during which their work assignment involved working in and travelling between two court locations, in accordance with instructions they were given while at work.
41The union acknowledged that the grievors had been given the instruction to go to the St. Catharines courthouse while they were at work, not after they had left for the day, but argued that because they had been required to travel during the day “without notice prior to that day,” the instruction was transformed into a “call back” to which Article 9.1 applied.
42The union did not suggest that any provision of the collective agreement created this alleged requirement for prior notice that a work assignment would include travel during paid work hours. There was no suggestion that this Board has ever found there to be such a requirement, nor that it has ever said anything about the long-standing provisions of Article UN9 that supported the union’s argument. The language of Article UN9 clearly does not apply to the circumstances that were the subject of these three grievances.
43For these reasons I answered “no” to the question and dismissed the grievances in files 2008-1821, 2008-1822 and 2008-1823.
Dated at Toronto this 11th day of May, 2009.
Appendix ‘A’
GSB#
Union#
Grievor
2007-1682
2007-0228-0050
Jolicoeur, Brenda
2007-1773
2007-0526-0016
McGann, Dag
2007-2463
2007-0212-0026
Cho, Kellen
2007-3133
2007-0119-0016
Gibbon, Linda
2007-3248
2007-0228-0055
Caschera, Jessica
2007-3357
2007-0130-0004
Mehlenbacher, Francine
2007-3366
2008-0205-0002
Wilson, Jeffrey
2007-3367
2008-0205-0003
Wilson, Jeffrey
2007-3368
2008-0205-0011
Wilson, Jeffrey
2007-3370
2008-0205-0013
Wilson, Jeffrey
2007-3371
2008-0205-0014
Wilson, Jeffrey
2007-3372
2008-0205-0015
Wilson, Jeffrey
2007-3373
2008-0205-0016
Wilson, Jeffrey
2007-3374
2008-0205-0017
Wilson, Jeffrey
2007-3375
2008-0205-0018
Wilson, Jeffrey
2007-3377
2008-0205-0020
Wilson, Jeffrey
2007-3378
2008-0205-0004
Antoniak, Stephanie
2007-3379
2008-0205-0005
Kiss, Juliana
2007-3380
2008-0205-0006
Iacobucci, Anna
2007-3381
2008-0205-0007
Terpou, Beverly
2007-3382
2008-0205-0008
Iarusso, Terri
2007-3383
2008-0205-0009
Young, Elaine
2007-3729
2007-0212-0029
Hollingsworth, Marlene
2007-3733
2008-0212-0001
Dolan, Krystyne
2007-3734
2008-0212-0002
Marceau, Heather
2007-3735
2008-0212-0003
Hollingsworth, Marlene
2007-3736
2008-0212-0004
Hollingsworth, Marlene
2007-3737
2008-0212-0005
Hollingsworth, Marlene
2007-3738
2008-0212-0006
Hollingsworth, Marlene
2007-3824
2008-0453-0002
Markell, Lynn
2007-4035
2007-0526-0029
Schacherl, Susette
2007-4036
2007-0526-0030
Giannopoulos, Tina
2007-4037
2007-0526-0031
Thakurdin, Annie
2007-4038
2007-0526-0032
Caguioa, Petronila
2007-4039
2007-0526-0033
Boyes, Chuck
2007-4040
2007-0526-0034
Janu, Ivana
2008-0015
2008-0205-0027
Wilson, Jeffrey
2008-0016
2008-0205-0028
Wilson, Jeffrey
2008-0017
2008-0205-0029
Wilson, Jeffrey
2008-0018
2008-0205-0030
Wilson, Jeffrey
2008-0019
2008-0205-0031
Wilson, Jeffrey
2008-0020
2008-0205-0032
Wilson, Jeffrey
2008-0021
2008-0205-0033
Wilson, Jeffrey
2008-0022
2008-0205-0034
Wilson, Jeffrey
2008-0193
2008-0212-0012
Hollingsworth, Marlene
2008-0194
2008-0212-0013
Hollingsworth, Marlene
2008-0195
2008-0212-0014
Hollingsworth, Marlene
2008-0196
2008-0212-0015
Hollingsworth, Marlene
2008-0197
2008-0212-0016
Marceau, Heather
2008-0198
2008-0212-0017
Motiak, Ginette
2008-0201
2008-0228-0011
Gautier, Janet
2008-0280
2008-0212-0018
Hollingsworth, Marlene
2008-0402
2008-0526-0003
Nosova, Larissa
2008-0744
2008-0212-0019
Motiak, Ginette
2008-0745
2008-0212-0020
Royer, Raymond
2008-0746
2008-0601-0002
Chenier-Tulonen, Denise
2008-0795
2008-0212-0021
Hollingsworth, Marlene
2008-0796
2008-0212-0022
Hollingsworth, Marlene
2008-0797
2008-0212-0023
Humphries, Tammy
2008-0803
2008-0228-0020
Amador, Deborah
2008-0805
2008-0228-0022
Pecaric, Anne
2008-0880
2008-0205-0040
Wilson, Jeffrey
2008-0955
2008-0205-0085
Wilson, Jeffrey
2008-0956
2008-0205-0086
Wilson, Jeffrey
2008-1464
2008-0212-0025
Hollingsworth, Marlene
2008-1702
2008-0205-0088
Campell, Laurel Elaine
2008-1796
2008-0310-0007
Duvall, Deborah
2008-1821
2008-0212-0026
Hollingsworth, Marlene
2008-1822
2008-0212-0027
Reid, John
2008-1823
2008-0212-0028
Motiak, Ginette
2008-2094
2008-0526-0012
Lam, Maria
2008-2398
2008-0212-0030
Hollingsworth, Marlene
2008-2399
2008-0212-0031
Hollingsworth, Marlene
2008-2602
2008-0710-0001
McKinnon, Trudy
2008-2603
2008-0710-0002
McKinnon, Trudy
2008-2688
2008-0212-0032
Hollingsworth, Marlene
2008-2689
2008-0212-0033
Hollingsworth, Marlene
2008-2966
2008-0212-0034
Hollingsworth, Marlene
2008-2967
2008-0212-0035
Hollingsworth, Marlene
2008-2969
2008-0405-0002
Hunt, Julie
Footnotes
- These include the question whether employer behaviour characterized as an “unreasonable exercise of management rights” can amount to a breach of the collective agreement about which the grievors could complain, in the absence of any suggestion that the behaviour had an adverse impact on some particular right that the grievors had under the collective agreement.