AH - 201

AH - 201

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS

(the ”Union”)

AND

CANADIAN PACIFIC LIMITED

(TELECOMMUNICATIONS DEPARTMENT)

(the “Company”)

IN THE MATTER OF THE GRIEVANCE OF Ted Sorenson

Board of Arbitration: Professor Joseph M. Weiler

There appeared on behalf of the Company:

David Flicker

There appeared on behalf of the Union:

Paul J. J. Cavalluzzo

A hearing in this matter was held at Vancouver, British Columbia, on the 1^st day of December, 1978.

This arbitration involves a grievance filed by Mr. Ted Sorenson claiming 3 hours overtime pay for work he performed on May 19, 1978. The parties agreed that this Board was properly constituted and had jurisdiction to hear and decide the matters in dispute. There was some disagreement between the parties concerning the question to be decided by this Board, but after hearing the evidence and argument of counsel, I am satisfied that the issue in this case can be summarized in the following question:

1. Is the Company in violation of the Collective Agreement in refusing to pay the grievor, Ted Sorenson for 3 hours of overtime on May 19, 1978?

2. If the answer to Question No. 1 is in the affirmative what is the appropriate remedy?

At all material times, the grievor was employed in the Telecommunications Department of Canadian Pacific as an Automatic Plant Technician, Grade 6. On May 19. 1978, at approximately 2:00 a.m. the grievor received a telephone call from on eof the Company’s testing and Regulating Chief’s (“Wire Chief”). The grievor himself did not receive the call but rather his son (who had also been sleeping ) answered the phone and then woke his father advising him that he was wanted on the phone. The Wire Chief was on duty and had encountered some problems in the nature of an interruption of service over a particular circuit caused by a malfunction of terminal equipment located at a major customer’s premises. The grievor then assisted the Wire Chief in the attempt to locate a technician to attend at the data centre of C. P. Rail to rectify the problem. Having gone over the seniority list with the Wire Chief the grievor advised the Chief to call the technicians according to their seniority and if he could not get someone to attend at C. P. Rail, to call the grievor back. At this point the grievor returned to his bed. Ten minutes later the grievor received another call from the Wire Chief who could not find a satisfactory employee to leave his home and attend at C. P. Rail’s premises. The grievor then advised the Wire Chief that C.P. Rail had an alternate spare circuit which could become operative while the regular circuit was being fixed. The grievor instructed the Wire Chief to activate the alternate circuit but if this did not work to phone back. The grievor then returned to bed and was not contacted again by the Wire Chief. Apparently, the ;grievor’s suggestion to activate the alternate circuit at C.P. Rail solved the immediate problem of restoring service to that customer.

The evidence discloses that the grievor spent roughly 30 minute talking to the Wire Chief on the two phone calls discussed above. When the grievor reported for his regular shift at 8 a.m., May 19, he submitted a claim for 3 hours overtime. The Company denied the claim and requested the grievor to resubmit a claim for one-half hour overtime, which approximates the time the grievor spent talking to the Wire Chief.

III

The Union’s position is that the Company has violated Article 11.02 which the parties refer to as the “consolidated collective agreement” in failing to pay for 3 hours overtime. Counsel for the union argued that the language of Article 11.02 is clear and unambiguous and requires that the Company pay a minimum of 3 hours overtime in circumstances such as existed on May 19, 1978, whether the employee actually works 3 hours of less.

The Company maintains that Article 11.02 must be read with the balance of what the Company claims constitutes the collective agreement. The various documents which the Company argues comprise the entirety of the collective agreement between the parties are discussed in memorandum prepared by the Company. The parties did not dispute the facts in the memorandum and thus I accept the memorandum as accurately describing the historical evolution of the collective agreement process between the parties. The gists of the memorandum appears as follows:

1 The Telecommunications Department of C. P. Limited (“C. P. Telecommunications”) has for many years been party to a collective agreement, as amended through the years, with the Canadian Telecommunications Unio9n, formerly known as the Commercial Telegraphers union.

2 At all relevant times the collective bargaining which took place between C. P. Telecommunications and the Canadian Telecommunications Union was principally carried on a concerted, industry-wide basis with all federally-regulated railway and telegraph carriers on one side of the table and a council or association of trade unions (going from time to time under various names such as “The Associated Railway Unions” of the “Associated Non-Operating Railway Unions”) on the other.

3 The procedure adopted in such concerted negotiation has at all times been for the associated union all to file common demands relating to monetary and health and welfare benefits, with each union submitting individual demands only on those other matters “which were not, and could not be of common interest to all the other unions engaged in concerted negotiations”.

4 The result of such concerted negotiations is a document known as the “Master Agreement” which by its terms expressly amends all existing collective agreements between the respective signatories.

5 The Collective Agreement between C. P. Telecommunications and the Canadian Telecommunications Union as it stood immediately prior to the execution of the Master Agreement of May 24, 1974 stipulated the following with respect to call-in pay.

“11.02 - When overtime is not continuous with, before or after the regularly assigned hours of the employee, it shall be paid for on the basis of a minimum of two hours whether required for this period or less.”

6 Clause 7 of the Master Agreement of May 24, 1974 read as follows:

“7. Call-In Pay

Effective January 16, 1974 call-in pay rules contained in the various collective agreements will be amended to provide that employees required to report for work, not continuous with before or after their regularly assigned shifts, shall be allowed call-in pay of three hours at overtime rates.”

7 C. P. Telecommunications forthwith commenced to pay call-in pay on the three hour minimum basis for work rather than the two hour minimum basis as provided for in the pre-existing collective agreement.

8 Notwithstanding the many changes introduced through the years into the collective agreement through the collective bargaining process, there was no consolidation of the collective agreement as it stood in 1972 until the consolidated document of May 26, 1976.

9 That consolidation showed Clause 11.02 to be as follows:

“11.02 - When overtime is not continuous with, before or after the regularly assigned hours of the employee, it shall be paid for on the basis of a minimum of three (3) hours whether required for this period of less”.

10 Subsequent Master Agreements dated December 11, 1974, July 20, 1976, and April 28, 1978, have made no reference to the matter of call-in pay.

11 There has been no subsequent consolidation of the “Collective Agreement” of May 26, 1976.

Unlike the situation in Regina v. Berber et al. (1968) D. L. R. (2d) 682, I am satisfied that Article 11.02 is not clear and unambiguous on its face with respect to the conditions in which overtime must be paid and the amount of overtime that may be claimed. Consequently I am justified in looking at evidence of negotiation history and supplemental documents which were prepared and signed by the parties during the course of negotiations in order to determine the meaning and effect of Article 11.02 of the consolidated collective agreement (see Douglas Aircraft and U. A. W. 22 L. A. C. 50 (Brown), Canada Bread 22 L. A. C. 98 (Christie)).

In essence the Company’s argument is that no overtime claim for 3 hours was justified in the circumstances of this case because Mr. Sorenson did not “accept the trouble call” in the sense that he did not “report to his place of work” but rather stayed home. In the Company’s view, Clause 7 of the Master Agreement of 1974 required employees to “ report for work” before they qualified for “call in pay” of three hours at overtime rates. The Company maintains that Article 11.02 of the consolidated collective agreement which requires the company to pay a minimum of three hours overtime pay must be read with Article 7 of the Master Agreement which specifies the conditions under which any overtime pay is payable. The Company’s position is that Mr. Sorenson would not qualify for call in pay at overtime rates because he did not “report for work” as required by Article 7 of the Master Agreement.

As noted above, I agree with the proposition that the master Agreement where it is not inconsistent with the subsequently signed consolidated collective agreement may be referred as a supplementary aid in interpreting the meaning and application of a clause in the consolidated Collective Agreement. The critical issue becomes whether Mr. Sorenson did “report for work” on May 19, 1978 by talking to his Wire Chief on the telephone.

There is no dispute that Mr. Sorenson did provided valuable assistance to the Wire Chief in solving the problem at C. P. Rail. Yet the Company argues that in order for the grievor to qualify for overtime pay under Article 11.02 he must actually report work in the sense that he must attend at either the Company’s premises or that of a customer where the work is actually performed. The Union maintains that Article 11.02 does require an individual to report to a specific location for call in duties and the “work” in this particular incident was actually performed over the telephone. Accordingly, Mr. Sorenson is entitled to three hours of penalty pay at overtime rates.

The collective agreement itself does not specify what constitutes “reporting for work”. In these circumstances I am lead to the common law of the collective agreement to determine what other arbitrators have said about the meaning and application of this term. The rationale for this examination of evolving of arbitral jurisprudence is that this collective agreement was negotiated in the context of how arbitrators have interpreted this type of clause. If there is a general consensus among arbitrators with respect to a meaning to be attributed to typical contract language as that which emerges from the common law of the collective agreement.

Turning to the reported cases on the nature and purpose of call in pay, I note that there are no cases with facts and contract language closely analogous to that in this case. However, the Company relies on a series of decisions which adopt the views of the arbitrator in Re International Molders & Allied Workers Union Local 49 and Webster Manufacturing (London) Ltd. (1971) 23 L. A. C. 37 (P. C. Weiler). Unlike the instant case, the issue in Webster was whether an employee who was asked to do additional work after the end of his regular shift, was entitled to call back pay. The Company in that case argued that since the employee had never left the premises when he was asked to work at the end of his shift, he was not “called back to work”. The arbitrator refused to adopt the reasoning, and in the course of the Award gave his views concerning the nature and purpose of a call-back clause. At page 41-42 he notes:

`In the absence of an explicit definition of a call-in or call-back, we would accept the interpretation in the first group of cases of the objectives of such a guarantee minimum, and agree that the provision should be applied in this light. What the provision does it to guarantee an employee a specified amount of minimum earnings in certain overtime situations, whether the company has enough work for this purpose of not. The reason why the parties negotiate this minimum is the recognition of the fact that being required to leave home and go to work usually involves significant disruption and expense for an employee and it is only fair that he should be guaranteed adequate compensation.. It is also designed to ensure that the company, which gets the benefit of the employee being called to work at an irregular time, be encouraged to make use of its powers only when this is important enough to warrant the costs it will incur. It is vital to recognize these guaranteed earnings, on overtime work outside regular hours are not paid the employees for overtime the follows continuously from the end of their shift. This is because the reason for the guarantee - the extra trip to and from work - did not obtain in this case. It is considered adequate compensation for the extra work outside the regular hours that the employee be paid the premium rate for the time actually worked. On this reasoning, an employee who is asked to come in to work overtime before and continuously up to the start of his shift should also receive only the overtime rate, and not the guaranteed minimum, because he has not been asked to make the extra trip to and from work. (Emphasis mine)

The Company in this case argues that the Webster case is authority for its interpretation of Article 11.02 and Article 7.01, i.e. the employee must leave home and go to work before his is entitled to the minimum call-in pay provided in Article 11.02.

In support of his position Counsel, for the union supplied to the Board with another arbitral precedent of Mr. Don O’Shea in Re Shell Canada ltd. and O. C. A. W., local 9 - 848 (1974) L. A. C. (2d) 422. In that case, the grievors had been called back for work, had attended at the plant, punched in, and changed into their work clothes when they were advised they were not needed. They then punched out and were in the process of driving away from the employee parking lot when they were stopped and requested to return to the plant to assist with the work. The employee submitted claims for two minimum call in payments. Mr. O’Shea upheld their grievance observing that it is not necessary for an employee to be put to an additional expense of travelling to the plant before he can be considered to be called in, the crucial point being whether the employee has punched his card for the second time.

In my view, neither of these two cases (nor any of the other cases cited by counsel) really addresses the problem of interpretation posed in our case. In those cases, the work which was required to be done had to be performed at the employee’s place of business. As such, an employee who was called in to work during off shift would be ordinarily put to the inconvenience of travelling to and from work from his home. This was the nature of the inconvenience which the arbitrator referred to in Webster which gave rise to the minimum penalty call back pay under the terms of that agreement. He reasoned that the purpose of all in pay is to reward the employee who has been put to some inconvenience, whose life has been disrupted by his employer’s need for services to be rendered during off shift hours. But the application of this reasoning is not limited to the isolated example of an employee who happens to be at home and must travel to work at any (perhaps remote) location. The critical factor is that it is only fair to provide minimum compensation for an employee whose life has been significantly disrupted by the need for his services during a period in which he would otherwise be free to do as he pleases. Mr. O’Shea makes this clear in some examples he provides in Shell Canada where he notes that it would not matter if that employee who returns to work was contacted outside the plant gate, in a restaurant across the street of at his home 10 miles away.

Applying this reasoning to the facts of this case, it is obvious that Mr. Sorenson’s life has been significantly disrupted by the telephone calls to his residence in the middle of the night. Both his son and he were awakened by the calls and Mr. Sorenson talked to the Wire Chief for 30 minutes over a 40 minute period after 2 a.m. There is no question that Mr. Sorenson provided valuable assistance to the Company through the instructions he gave the Wire Chief over the phone. There is also no dispute that giving these instructions constitutes “work”. The company by paying Mr. Sorenson for ½ hour overtime, has indicated that it considered Mr. Sorenson to have provided a service for its benefit. Unlike the circumstances in Webster and Shell Canada where the work to be done had to be performed at the plant, Mr. Sorenson was able to “work” for the Company by giving instructions over the phone. In my view, by providing these instruction, Mr. Sorenson has “reported for work” as that term must be interpreted in the context of Article 7 of the Master Agreement. Any other construction of this term would place an artificial limitation of the principle of fairness which is the basis of call in pay which emerges from Webster and Shell Canada and the host of other cases which deal with entitlement to call in pay.

In summary I am of the view that in the circumstances that prevailed on May 19, 1978, Mr. Sorenson reported for duty as that term is to be interpreted in Article 7 of the Master Agreement. As such, Mr. Sorenson is entitled to a minimum of 3 hours overtime by reason of Article 11.02 of the consolidated collective agreement. Accordingly, I answer the question posed at the outset of this award in the affirmative, for in failing to pay Mr. Sorenson for 3 hours overtime, the Company has violated the collective agreement. Consequently, I uphold the grievance and order the Company to pay Mr. Sorenson 2 ½ hours additional overtime in accordance with Article 11.02.

`Professor Joseph M. Weiler