GSB#2007-2412

UNION#2007-0549-0002

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)

Union

• and -

The Crown in Right of Ontario (Ontario Science Centre)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Frank Inglis Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Counsel

HEARING

June 22 and November 5, 2009, February 12, 2010.

Decision

1This decision relates to a union grievance dated September 26, 2007, filed on behalf of some thirty unclassified hosts in the Host Department of the Ontario Science Centre. The grievance alleges that the manner in which the employer pays overtime to the affected employees is in contravention of article 31.A.3.1 of the collective agreement.

2That article reads:

31A.3.1 One and one-half (1½) times the basic hourly rate shall be paid for authorized hours of work performed:

(a) In excess of seven and one quarter (7¼) or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one-quarter (36¼) or (40) hour work week as applicable, or

(b) in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours, or

(c) in excess of the employees’ regularly scheduled work week, or

(d) in excess of thirty-six and one quarter (36¼) or forth (40) hours per week where employees do not have regularly scheduled work days.

3The employer has paid, and continues to pay, overtime rates to unclassified hosts on the basis of sub-article (d). The union contends that they are entitled to be paid overtime rates in accordance with sub-article (c).

4Overtime rates are payable under article 31.A.3.1(d) “where employees do not have regularly scheduled work days”. The issue to be determined in this proceeding is whether the unclassified hosts fit that description. The employer takes the position that they do not have regularly scheduled work days, and that therefore, sub-article (d) governs. The union contends that unclassified hosts’ entitlement to overtime rates should be governed by sub-article (c).

5Whether or not employees have regularly scheduled work days is a question of fact, subject of course to the meaning to be ascribed to “regularly scheduled work”. Employer counsel submitted that sub-articles (c) and (d) are patently ambiguous. On that basis, he argued that the evidence that for many years the employer has paid overtime to unclassified hosts in accordance with sub-article (d) is “critical” in determining the intention of the parties. I disagree. The relevant provisions are capable of reasonable interpretation, and in fact the Board has interpreted them. Accordingly, it is unnecessary and inappropriate to have resort to evidence of past practice.

6The union called three witnesses, Mr. Tyler Seguin, (unclassified host), Mr. Bruno Piticco, (a Regular Part-Time Host, who also has worked as Senior Host and had held the positions of union steward and chief steward) and Mr. Duck-Soo Chang (Senior Host). The only witness for the employer was Dr. Hooley McLaughlin, Director of Visitor Experience. In addition, a number of documents were filed, including employee work schedules and “Unclassified Staff Contracts” under which unclassified hosts were hired.

7Each of the unclassified staff contracts in question is accompanied by a letter of appointment, which includes the statement, “This is a part-time irregular hours unclassified OPSEU position”. The typical contract has a notation “not applicable” in the term “Full time scheduled hours of work are (blank) per week”, and states “Part-time up to 36.25 hrs/wk.” The contracts also contain a provision to the effect “Part-time maximum hours before entitlement to overtime compensation are 36.25 per week”.

8The employer canvasses employee availability and preferences, and posts schedules in advance assigning employees to the anticipated work. The schedules usually cover 4 months, but it could vary. The Ontario Science Centre is open every day except Christmas day. Normal open hours are from 10:00 a.m. to 5:00 p.m. However, during peak periods the Centre is open from 10:00 a.m. to 6:00 p.m. “Peak periods” are school March break, summer school holidays and Christmas holidays. Unclassified hosts, are scheduled to start 15 minutes before opening time, and work to closing time of the Centre, with a one hour unpaid lunch break.

9Each of the union witnesses answered in the affirmative when asked by union counsel whether unclassified hosts usually worked the hours as per the posted schedules. Mr. Seguin testified that his regular schedule was 9:45 a.m. to 5:00 p.m. Thursday to Monday inclusive. He stated that since he started in December 2006, he worked in accordance with that schedule, except for “minor variations”. However, it is clear from the evidence that there were departures from the posted schedule necessitated by a number of contingencies. Thus Mr. Seguin testified that his hours could vary “quite a bit”. He may be asked to do hours in addition to the scheduled hours, and if he agreed he would do hours not reflected in the schedule. This could happen as infrequently as once a month or as frequently as two or three times a week, depending on what was going on. Mostly, this happened when there were special events. He testified that in these cases no amended schedule was posted to reflect the additional hours.

10Mr. Seguin testified that from time to time he would get approval to not work scheduled hours. In 2007 he had taken several weeks off and returned to the same schedule he had. According to Mr. Seguin in the past 3 years his schedule had been very consistent. With management approval he may work less hours than those scheduled. Hosts request days off by filling out a form. He may be assigned additional hours on scheduled work days, when after hours events such as weddings and corporate events are held. His supervisor may send him home earlier than scheduled in order to ensure that he does not exceed 36.25 hours for the week, but this did not happen frequently.

11In cross-examination, Mr. Seguin confirmed that although his normal work day was 36.25 hours, “as infrequently as once a month or as frequently as two or three times a week”, he would work longer hours than those reflected on the schedule. With notice of approximately two weeks, he may also be asked to work on days not on his schedule. Referring to employer records, employer counsel reviewed with Mr. Seguin many days in which he had worked in excess of 6.25 hours. His explanation was that those represented “a regular day plus an after hours event”.

12Mr. Piticco testified in chief that unclassified hosts had consistent work schedules during non-peak periods. During peak periods, there was a different schedule, but that changed schedule applied consistently for the duration of a peak period, before reverting to the regular schedule. The difference, according to him, was that under the peak-period schedules, employees worked one hour longer.

13Mr. Piticco conceded that from time to time the hours of an unclassified host may be changed. When this happens, no amended schedule is posted. He had been involved in scheduling of unclassified hosts in the capacity of senior host. In doing so, he had to ensure that staffing levels are consistent each day. In order to accomplish this, employees may be asked to work on days not on the posted schedule. Mr. Piticco stated that unclassified hosts are expected to work the hours as per schedule. Exceptions are where the employee calls in sick, switches a shift with a co-worker with management approval, or requests a day off.

14In cross-examination, Mr. Piticco agreed that when scheduling, senior hosts have to ensure that staffing levels meet the operational requirements on a given day. He agreed that while hosts are scheduled to work 6.25 hours per day, when after hours events take place, they may be asked to do longer hours. He agreed with employer counsel’s suggestion that unclassified hosts worked beyond scheduled hours “fairly regularly”, and that “there are lots of after hours events which require hosts to work beyond normal hours”.

15Mr. Chang has been involved in scheduling unclassified hosts for over 13 years. He testified that in scheduling unclassified hosts, attention is paid to the employer’s staffing needs as well as the employees’ outside commitments. There was recognition that these are part-time employees, many of whom have other commitments. Some are students. Others have other part-time jobs. Attention is also paid to the skill sets needed on particular days depending on what is going on.

16Mr. Chang testified that while a standard work day for an unclassified host was 6.25 hours, the work day may be extended as a result of “before hours”, “after hours” and “during hours” events. As examples, he cited Science Fridays, host meetings, training sessions, facility rentals, marketing events, private functions and corporate events. In assigning hosts to these events, an attempt is made to distribute additional work opportunities that became available equitably. However, the employer has to have regard to the skill sets required to properly staff a particular event. In response to union counsel’s question, “Do you agree that after and before event hours are generally in addition to an employee’s regular hours”, Mr. Chang replied “yes”.

17At the commencement of the cross-examination of Mr. Chang, the following exchange occurred:

Q. Our evidence will be that in different periods the start and end times for hosts change and they can also change within periods – do you agree?

A. Yes. Senior management decides the hours in all periods, peak and non-peak.

Q. Therefore, do you agree that it is not uncommon for hosts to work from 9:45 a.m. to 5:00 p.m., and on other occasions from 9:45 a.m. to 6:00 a.m., 10:45 to 7:00 p.m., or 8:45 a.m. to 5:00 p.m.?

A. Yes. We have different shows. Some demand different opening and closing times. It depends on how popular a show is. The open times are linked to the interest visitors have. We have to staff those shows accordingly.

Q. During March break, the OSC has extended hours?

A. Yes. It could go to 7:00 p.m., 8:00 p.m. or 9:00 p.m. It depends on the demand from visitors. That means we will have 2, 3 or 4 shifts that day to ensure we have enough hosts for the large crowds.

Q. What would be the start times for those shifts?

A. The first shift will likely be 9:45 a.m., and can go to 6:00 p.m. So 7:25 hours. They can start at 11:45 a.m. and finish at 8:00 p.m. Or they can start at 12:45 p.m. and go to 9:00 p.m. There can also be shorter shifts from 11:45 a.m. to 3:45 p.m. during March break.

18Mr. Chang stated that hosts may be assigned to “board duty”, i.e. to change demonstration and exhibit boards. Unclassified hosts assigned to board duty start at 9:00 a.m. When a group of visitors, like a school group, is expected to arrive early, hosts may be required to start at 8:45 a.m. In addition, there can be media events which require hosts to start early. Mr. Chang cited as an example “Breakfast Television”, for which hosts have to start at 7:00 a.m. He testified that hosts could also work “all night” on occasion. He stated that there have been “rentals” that went on from 9:00 p.m. to 6:00 a.m. On occasion hosts have worked until midnight. He referred to a recent “Halloween Rental” during which hosts worked until 1:00 a.m. These late events can take place any time of the year, peak and non-peak. Mr. Chang agreed that these “before hours” and “after hours” events occur fairly regularly. He also testified that when a particular program has to be delivered, a host with the required skills may be called in to work even though he/she was not scheduled. He agreed that there were a number of start/end times for unclassified hosts.

19In re-examination Mr. Chang was asked whether the variations in work hours he had described in cross-examination also applied to classified staff. He replied, “They work a bit more set schedule. They work from 9:45 a.m. to 5:00 p.m. and if they work more or less hours, they are sent a letter setting out the change to their regular schedule”. When asked when an unclassified host may work other than from 9:45 a.m. to 5:00 p.m. during non-peak periods, Mr. Chang replied “Whenever there is a request for an after hours or before hours event or a facility rental like corporate challenge”. He stated that those hours do not appear on the posted schedule. Mr. Chang testified that the different shifts during peak periods are reflected in the posted schedule, as are “board duty” assignments.

20Dr. McLaughlin testified in chief that visitor attendance levels are generally predictable during peak periods and non-peak periods. However, attendance levels may vary depending on particular exhibits on display. For example, there were very high visitor levels even during non-peak periods during the Body World exhibition. Attendance may also increase when free events are held. The weather may also affect attendance levels.

21Dr. McLaughlin described the posted schedule as a “predictive tool”. In preparing the quarterly schedule, consideration is given to the particular demonstrations and exhibits taking place. Attention is paid to the skills needed to staff them properly. If outside events, birthday or wedding parties and corporate events are requested in advance an attempt is made to build them into the work schedule.

22Dr. McLaughlin testified that while the typical shift for an unclassified host is from 9:45 a.m. to 5:00 p.m., there were variations. One related to “Board duty”, which requires hosts to start early. Similarly there are different hours scheduled during peak periods such as March break. Often the need arises to change scheduled hours with no notice. For example, if there is a large crowd of visitors, the Centre will be kept open longer. Similarly particular events such as Science Fridays will require longer open hours. When “open hours” are extended, hosts work longer hours. Unclassified hosts may request approval of shift-exchanges. Management would attempt to accommodate such requests, provided that the staffing requirements can be met.

23During cross-examination Dr. McLaughlin agreed that managers attempt to anticipate special events, and to build them into the schedule. However, he added that “continually there are changes made. What you see as a schedule can change.” When ad hoc staffing needs arise, an attempt is made to fill that need without the use of overtime. If that is not possible approval is sought from the CEO for use of overtime.

24The issue to be determined then is whether based on the foregoing evidence, the employees in question may be said to have “regularly scheduled work days”. The employer emphasized the terms of the contracts under which unclassified hosts are hired. Reliance was placed on the explicit provision in the letter of appointment that the position was a part-time “irregular hours” unclassified position, the provisions in the contract that full-time scheduled hours of work are “not applicable”, and that hours are “up to” 36.25 hours per week. There is no doubt that the employment contracts contemplate that unclassified hosts will have irregular hours. However, this is not dispositive of the grievance. It is open to the union to establish that despite the terms of the contract, and the employer’s expectation at time of hire, the employees in fact worked regularly scheduled days. If it is established that they do have regularly scheduled days, sub-article (d) would apply, despite the provision in the individual contracts of employment that overtime is payable only after 36.25 hours per week.

25The existence of work schedules issued in advance is not sufficient to establish that the employees had regular work hours or days. It is difficult to imagine any workplace functioning without some form of work schedule. The determining evidence, however, is the extent and frequency of deviation in actual fact from the posted schedule. Article 31.A.3.1.(d) does not create an entitlement to overtime rates merely because there is a work schedule posted in advance. Entitlement is only where employees in fact work regularly scheduled work hours/days.

26Thus in Re OPSEU Group Grievance, 0683/99 (Abramsky) in holding that the grievors were governed by sub-article (d) and not (c), the Board at p. 14 stated:

The word “regularly” in Article 31.3.1.(d) modifies “scheduled work days”. It does not mean “scheduled in advance”. They must have “regularly scheduled work days” on an ongoing, consistent basis for Article 31.3.1.(d) not to apply. Where, as here, unclassified employees may or may not be scheduled they “do not have regularly scheduled work days” and they must work in excess of 36¼ or 40 hours per work in order to receive overtime pay.

27While the Board held that for sub-article(d) to not apply there must be regularly scheduled work days “on an ongoing consistent basis”, that does not mean that the “same” schedule must continue on an ongoing basis. If employees work a certain set schedule of days during non-peak periods, and a different set schedule of hours during peak periods (or a different schedule of hours in each of the three peak periods), the fact that they have two (or four) different schedules during the course of a year does not mean that they do not have regularly scheduled work days. Therefore, the fact that the employer posts different hours of work for non-peak periods and peak periods would not exclude sub-article (d), provided that the employees actually adhere to the hours as posted in the schedule. Thus in Re Chircop, 3039/92 (Kaufman) the grievor had a regular three week rotation of work hours. He worked certain set days of the week during week one, certain other days during week two, and another combination of days during week three. He worked on these days on a three week rotation regularly and on an on-going basis. The Board at p. 61 held:

…his 3-week rotating schedule gave him three different but regularly scheduled work weeks, such that Art. 3.4(c) [now 31.A.3.1(c)] might apply. And although the grievor’s days of work varied, depending upon the week, as of in the last week of January, 1991 his “work days” were regularly scheduled on a 3-week rotation, such that Art. 3.4(d) [now 31.A.3.1(d)] would not apply.

28Similarly, in my view the fact that employees may be allowed to request days off, to switch hours with a co-worker or to otherwise request a change in the scheduled hours due to some personal need, and the fact that the employer would accommodate such requests if that could be done without adversely impacting on the staffing requirements does not turn otherwise “regularly scheduled hours” into irregular hours. Employee initiated deviations of that nature from a regular work schedule subject to approval by the employer on an ad hoc basis does not have that result.

29In the present case, unclassified hosts did have work schedules posted in advance for peak periods as well as non-peak periods. The evidence is that the employer, in developing the schedule took into account the staffing requirements for the scheduled exhibitions, demonstrations, group visits etc., as well as already scheduled after and before hours events, and private functions such as weddings and corporate events. These known requirements are built into the posted work schedule. The employer anticipates all requirements that may arise, and attempts to build the staffing requirements into the work schedule.

30If unclassified hosts actually worked the hours in the posted schedules, they would have “regularly scheduled work days” within the meaning of sub-article (d). However, the evidence is to the contrary. The unclassified hosts’ work day is anything but predictable. While the posted schedule attempts to anticipate staffing needs, the evidence is that due to the very nature of the business, the schedule has to be changed on an as needed basis. Thus Mr. Sequin testified that he could work hours not reflected in the posted schedule “as infrequently as once a month or as frequently as two or three times a week”, depending on what was going on. In addition, he may be asked to work days not set out in the posted schedule. Mr. Piticco also agreed under cross-examination that “fairly regularly” unclassified hosts work hours beyond those on the posted schedule because of after hours events and that there are “lots of after hours events”. Mr. Chang corroborated that testimony and further stated that depending on the nature of the after hours events, employees with particular skills may have to be assigned. He also confirmed that depending on the volume of visitors, the hours of operation may be extended without notice, a fact also confirmed by Mr. McLaughlin. As Mr. Chang pointed out, although during March break the Centre is scheduled to close at 6:00 p.m., it could be kept open to 7:00 p.m., 8:00 p.m., or even 9:00 p.m., depending on visitor demand. When this happens, unclassified hosts end up working beyond the hours reflected in the schedule.

31It is evident from the totality of the evidence that the staffing requirements are dictated by a number of contingencies, some predictable, some not predictable. The evidence is that these additional events that necessitate deviation from the posted schedule are not uncommon. They are a feature of the business. They cannot be regarded as “de minimis”. Given the unpredictable nature of the staffing requirements, the evidence confirms that while a work schedule was posted in advance, the posted hours were not adhered to on an ongoing and consistent basis.

32In the OPSEU Group Grievance case, (supra) Vice-Chair Abramsky distinguished Re Chircop, from the facts before her. At pp. 13-14, she wrote:

There is no question that the grievors were scheduled in advance to work on certain days – whether one week or one day in advance. But there was no certainty in this. They were scheduled on an “as needed/as required” basis. They might be scheduled; they might not be scheduled. There was no guarantee of hours or work.

In this regard, Chircop is distinguishable. In that case, the grievor enjoyed a three-week rotating schedule giving him “three different but regularly scheduled work weeks…” (Dec. at p. 61). Thus, the board concluded that “his ‘work days’ were regularly scheduled on a 3-week rotation, such that Article 3.4(d) [now Article 31.3.1.(d)] would not apply.”

33The evidence in the instant case is distinguishable to the extent that unclassified employees knew in advance that they were in fact scheduled on particular days and for particular hours. Generally they did work on days scheduled. However, there was no certainty that their actual hours of work would correspond to the posted hours. To the contrary, the evidence is that they often performed additional hours on an “as needed/as required basis”. Therefore, the result is the same. They did not in fact have regularly scheduled work days.

34Faced with this evidence, the union made a novel argument in support of its position that sub-article (d) did not apply. Counsel argued that the performance of additional hours as needed did not mean that the employees did not have regularly scheduled work days. The employees did the scheduled hours, although they also did some hours “in addition to the scheduled hours”. In this regard, evidence was tendered to the effect that when employees performed additional hours, no amended schedule was posted. Thus, the argument went, the employees had regularly scheduled work days. The fact that they did hours in addition to that is irrelevant.

35Creative as that argument is, I do not find that to be a reasonable interpretation of article 31.A.3.1. The evidence is that despite the posting of a schedule of hours, unclassified employees do not perform regularly scheduled hours on an ongoing and constant basis as envisaged in the provision. Their work hours have no certainty and may vary depending on unpredictable operational needs. For example, the volume of visitors on a given day. “Scheduled work” in article 31.A.3.1.(d) does not refer to a piece of paper setting out work hours. It refers to work performed in accordance with a pre-determined schedule. These employees do not perform work in accordance with a pre-determined schedule on an ongoing and consistent basis. On the contrary, on a regular basis they perform work hours, which are in variance with the pre-determined schedule.

36During his opening statement, employer counsel stated that the dispute between the parties was whether the overtime entitlement of unclassified hosts was governed by article 31.A.1.3(c) as the union contends, or by article 31.A.1.3(d) as the employer submits, and that, therefore, the issue to be determined by the Board was whether or not unclassified hosts had regularly scheduled work days. At the commencement of his opening statement, union counsel explicitly agreed that that was the issue to be determined. He made no assertion that article 31.A.3.1.(a) or (b) applied. In fact those sub articles were not even mentioned. However, during final submissions, union counsel for the first time argued that overtime entitlement may be governed by more than one sub-article of article 31.A.3.1. Without elaborating how the evidence meets the particular requirements of sub-articles (a) or (b), Counsel closed his submissions by stating that unclassified hosts’ are also entitled to overtime under those provisions. The Board finds that the evidence does not establish that the conditions set out in sub-articles (a) or (b) are met. It is, therefore, unnecessary to decide whether an employee or a group of employees may be governed by more than one sub-article of article 31.A.3.1.

37In summary, the Board finds that the overtime entitlement of unclassified hosts, considering the evidence relating to the relevant time period, is governed by article 31.A.3.1.(d). Therefore, by applying that provision the employer did not contravene the collective agreement. As a result the grievance is hereby dismissed.