Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 November 3, 2014 ArbitrAtion AwArds According to the collective agreement, when an occasional teacher is called to an assignment for a half day, it will be either for a morning shift or an afternoon shift — and they will never be re- quired to work over the lunch break. On a couple of occasions dur- ing the 2012-2013 school year (but not enough to be especially disruptive), the vice-principal had to leave school in the morn- ing. An occasional teacher would be enlisted to cover her teach- ing responsibilities and would work from 9:40 a.m. to 1:10 p.m. Though the replacement staffer would not teach for more than 150 minutes, they would be required to work over the lunch break. The union argued this was in violation of the collective agree- ment by requiring them to work over the break. "If the occasional teaching be- gan at the start of the day, instead of later on, the occasional teacher could, even in a balanced school day environment, complete all of his or her teaching before the lunch break," the ETFO explained. "The collective agreement could, and should, be administered in a way that did not lead to a breach and that meant, in this situation, starting the occasional assign- ment earlier in the day." On the other hand, the school board submitted that there was no possibility of an occasional teacher ever getting more than a half-day assignment, that all occasional teachers taught for 150 minutes and were paid for 150 minutes. Further, the non- traditional schedule eliminated any "lunch break" and made the union's argument moot. "Since there is no lunch break in the traditional sense at noon anymore with the balanced day, we believe that assignments dur- ing the second instructional block that conclude around 1 p.m. are not in violation of the collective agreement," the board said. In this case, the flaw was in the design, the arbitrator ruled. In his decision, William Kaplan said there had been a technical breach of an out-of-date provision in the collective agreement. Both the union and board no longer ad- hered to a schedule with morning and afternoon classes separated by a lunch break. "So, while the existing provision has been breached, that breach must be placed in context: it is technical only as the provision has no current applicability," Kaplan explained. As such, any award would be limited to a finding of a technical breach. Going forward, Kaplan went on to say, the issue should be addressed in future rounds of col- lective bargaining to reflect the new schedule. Reference: Grand Erie District School Board and the Grand Erie Elementary Occasional Teachers' union, affiliated with the Elementary Teachers' Federation of Ontario. William Kaplan — arbitrator. Stephen Gleave for the employer, Mark Wright for the union. Oct. 14, 2014. Floater employees fight for travel time ReORGANIzATION of the Southern Regional Health Au- thority in Manitoba led to a fight for travel time. In 2008, a new float/relief posi- tion was created as a result of re- organization. The new position would see employees providing relief where regular staff mem- bers were not available at any of the three ambulance stations in the north. The three stations were Portage, Elie and MacGregor. The general reaction from employees was positive, though concerns were raised regarding whether float/relief employees would be paid mileage when trav- elling in the North to the smaller stations of Elie or MacGregor. Because the majority of calls came in to the larger station of Portage, it was decided float/relief employees would receive mileage when they had to travel a longer distance than their normal com- mute to Portage. No concerns were raised re- garding travel time. In April 2011 Kevin Bueckert was awarded a full-time float po- sition. Bueckert submitted over- time sheets for dates in June, July, August, September and October. All claims for overtime were for time travelled between Portage and the smaller stations of Elie and MacGregor. The overtime claims were de- nied and the Manitoba Govern- ment and General Employees' Union filed an individual griev- ance and a policy grievance on Bueckert's behalf. The union argued employees travelling from their work base to attend another work site are required to be paid mileage and travel time. While the union confirmed permanent employees working at the stations do not receive travel time, it argued the nature of the float roles — travelling to any of the three ambulance stations to provide relief — made them eli- gible for such payment. Employees must be assigned a base location in order to calculate certain benefits such as mileage and meal expenses. Because Portage was estab- lished as the base location in calculating mileage, the union argued, travel time between Por- tage and the smaller two stations should be subject to travel time rates. The employer, however, ar- gued the float employees were not entitled to travel time, stating employees are not paid to drive to work. The very nature of the float po- sition is to relieve employees at three different work sites. Even overlooking logic and common sense, the employer said, a strict reading of the collective agree- ment shows the phrase used is 'work site' and not 'base location,' meaning employees can be as- signed to any one of the three sta- tions. The employer further argued the union should be estopped from grieving the issue. When the issue of mileage was raised by employees, the employ- er said, the issue was quickly dealt with. Had the union raised the issue of travel time it could have been addressed at the bargaining table by way of a memorandum of agreement. The union's failure to raise any concerns relating to travel time, however, led the employer to be- lieve there were no issues. For this reason the employer argued the union should be estopped from grieving and the issue of travel time should be addressed in the next round of collective bargain- ing. "The silence of the union cer- tainly, in my view, was a represen- tation to the employer that the matter was not a live issue and, accordingly, the employer was precluded from dealing with this in negotiations subsequent to the implementation of the program," said arbitrator Michael D. Werier. "As a result, I believe the union is estopped from insisting on its strict legal rights, if there were any, until the expiry of the present agreement." Furthermore, Werier found the relevant sections of the collective agreement clearly reference a 'work site' and not a 'base location,' omitting any refer- ence to travel time. As a result he ruled the employ- ees are not entitled to the over- time as claimed in the grievances for travelling, in effect, from their home to their work site. The grievances were dismissed. Reference: Southern Regional Health Authority and the Manitoba Government and General Employees' Union. Michael D. Werier — arbitrator. William S. Gardner for the employer, Helen Krahn for the union. May 6, 2014. < from pg. 1

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