HomeMy WebLinkAbout1986-1464.Apfelbeck et al.90-05-03EMPLOY~SDEL.4 CO”RONNE DEL’OONTAR~O
CQMMISSION DE
SETTLEMENT REGLEMENT
I DES-GRIEFS
&i$) 1465/86
1466/86, 1467/86, 14;8/86
IN TEE NATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
BEFORE:
FOR TEE
GRIEVOR:
FOR THE
EMPLOYER:
HEARING:
OPSEU (Apfelbeck et al)
Grievor
-
and -
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
C.G. Simmons 'Vice-Chairperson
E. Seymour Member
D. Montrose Member
I. Roland
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
R. Younger
Staff Relations Advisor
Ministry of the Environment
December 20, 1989
December 21, 1989
-s I
2. . 1
DECISION
This case involves five grievors who are employed by the
Ministry of the Environment at the Elgin Area Water System which
is centred at St. Thomas. Two of the grievors, Mr. John A.
Apfelbeck and Jack Barrett appeared as witnesses, but it is agreed
that this decision is applicable to all five grievors. The
grievers' hours of work are from 8:00 a.m. to 4:30 p.m., Monday
through Friday. Between 4:30 p.m. and 8:00 a.m., Monday through
Friday, one of the grievors is designated to be "on call" and is
further designated to be on call for the-24 hours on each of
Saturday and Sunday. Each of the grievors share this designation
on a rotational basis which means that each grievor must assume the
"on call" duties~ every five weeks. The grievances were filed on
October 6, 1986, claiming that they be considered to be on
"stand-by" under Article 15 of the collective agreement instead of
being "on call" as provided for in Article 16. Those articles read
as follows:
Article 15 - Stand-By Time
15.1 "Stand-by time" means a period of time that
is not a regular working period during
which an employee keeps himself available
for immediate recall to work.
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15.2
15.3
15.4
2
Stand-by time shall be approved in writing
and such approval shall be given prior to
the time the employee is required to stand
by except in circumstances beyond the
Employer's control.
Where an employee is required to stand by
for not more than the number of hours in
his normal work day, he shall receive four
(4) hours' pay at his basic hourly rate.
Where an employee is required to stand by
for more than the number of hours in his
normal work day, he shall receive payment
of one-third (l/3) of'the stand-by hours
at one and one-half (14) times his basic
hourly rate.
Article 16 - On-Call Dutv
16.1 "On-call duty" means a period of time that
is not a regular working period, overtime
period, stand-by period, or call-back
period, during which an employee is
required to be reasonably available for
recall to work.
16.2 On-call duty shall be approved priortothe
time the employee is required to be on
call.
16.3 Where an employee is required to be on call
he shall receive twenty-five cents (25c)
per hour for all hours such employee is
~assigned to on-call duty.
As can be seen the amount of pay is quite different between
Articles 15 and 16. The Employer maintains that the grievors are
required to be "on call" pursuant to Article 16 because they are
required to be reasonably available for recall to work. The
grievors claim that they have kept themselves available for
immediate recall to work pursuant to Article 15.
3
Other panels of this Board have been called upon from time to
time to address this issue and their decisions will be referred to
later in this award. .However,~we wish to note that, almost without
exception, the Board has commented that each individual
circumstance will have to be determined on its particular fact
situation. Accordingly, we intend to relate the facts in some
detail that was presented before this Board.
The Elgin Area Water System is responsible for two separate
operations. One is the water treatment and supply system which
supplies St. Thomas and area with potable water as well as water
for their fire protection. Additionally, it supplies Ford Motor
Company with its water requirements. The second operation is the
sewage treatment system which is somewhat smaller and the main
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community that is, supplied is.Port Stanley.
There is an operator on duty at the main station 24 hours a
day whose main function is to monitor the two. operations. The
entire water system, as well as the sewage system, have automatic
alarms that sound when there is a malfunction. These alarms are
activated when a low water mark is reached in the water system and
a high water mark is reached in the sewage system.
To ensure that the system.operates properly there are a number
of pumps that operate automatically which are activated when
required. However, if the pumps malfunction alarms sound at the
main control centre where the operator is located who must decide
what the appropriate response must be. In the event that an alarm
sounds outside of the hours between 8~00 a.m. to 4:30 p.m., Monday
?
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through Friday, he will know where'the malfunction is occurring and
will know if it is a sewage or water malfunction, but he will not
know what the nature of the malfunction is, nor will he know how
serious the situation is because of the malfunction. It is at this
point that the operator must make a decision whether to calls the
designated person who is "on duty" that week to return and correct
the malfunction. Assuming he decides to call the person and if his
telephone call to the number listed is unsuccessful, he then
contacts a private paging system which contacts the designated
employee on the pager and instructs that person to contact the
operator.
Mr. Jack Barrett is one of the employees who participates in
this rotating l~on-call~~ function. He was first employed on
January i980, and when he was interviewed he was informed that he
had to live within 20 kilometres of the plant. To his knowledge,
the same condition has been imposed on other persons hired as well.
Mr. Barrett testified that~the water is pumped out of Lake Erie and
into the treatment plant where it is treated and then sent into the
system. The water goes to St. Thomas, Port Burwell, and Vienna.
It serves a population of approximately 45,000 to 50,000. As
mentioned earlier, the plant also supplies Ford Motor Company. He
informed us that St. Thomas uses approximately 4-5 million gallons
per day, but during the peak summer months that can increase to
between 6 and 7 million gallons per day. This water is pumped into
the St. Thomas reservoir by the pumps at a booster station. There
are three pumps located at this station, each of which is capable
5
of pumping 6 million gallons perday. Two of the pumps are what
are called "first line duty pumps" which alternate‘ from time to
time. Both of these pumps cannot be operating at the same time.
The third pump is referred to as the "second line duty pumpI* and
will be activated in certain situations such as when the water
level becomes low or if one of the first two pumps malfunctions.
Mr. Barrett testified that should the pumps stop, say in the peak
season such as June, July r and August, it would only take
approximately 30 minutes before the water pressure dropped.
However, he indicated that the St. Thomas water tower could give
water to the community for another half hour or so. The operator
at the control centre is able to start and stop any one of the
pumps from his location. However, if there is a malfunction he is
unable to leave his control room and this is when he must decide
whether or not to call in the mechanic "on duty." Mr. Barrett
informed us that the booster station is approximately 10 miles away
from the plant where the operator is located. We were further
informed that should the water levels become low, the number three
second line duty pump automatically activates.
As stated earlier, the operations also involve a sewage system
serving Port Stanley, Belmont, and a smaller community nearby.
Disposal of sewage is by way of a lagoon system. There are four
lagoons at Port Stanley and two in Belmont. Sewage reaches the
lagoons through a pumping system. There is one main pumping
station at Port Stanley and four sub-stations. There are three
stations in Belmont. Each station has two pumps. Once again,
6
these systems are monitored by alarms which alert the operator at
Central Control. The difference in this system is that the alarms
are activated when the water level becomes too high as opposed to
the water system which activates the alarms when the water level
becomes too low. This monitoring is by a float system which tells
the operator that the levels have become too high. It is noted
that the pumps are not monitored by the operator but that the
levels are. If a problem arises at-Port Stanley, a light comes on
at the Central Control and once again the operator must make a
judgement call whether to call the person "on call" to attend to
the problem. If he decides to contact the person then that person
must go to Port Stanley, enter a building where a panel exists
which informs the person where the problem is located. It is at
this point that it is discovered whether one of the pumps in one
of the stations has malfunctioned, or indeed whether both of the
pumps have ceased to function. According to Mr. Barrett, these
pumps which have malfunctioned must be reactivated or a spillage
from the lagoons is possible. In the event that they cannot be
reactivated, a judgement call must be made whether to engage local
sewage trucks to haul sewage away in order to prevent spilling or
to continue attempting to correct the situation. Mr. Barrett
informed us that the Belmont situation presents a problem in that
the system was undersized at the time it was built. Problems arise
when there have been situations where rain has occurred for three
or more days causing high levels meaning that the pumps were just
keeping up to the situation.
7
Mr. Barrett also informed us that a number of problems may
occur such.as faulty seals in the pumps allowing water to penetrate
into the electrical system and thereby grounding them out. Other
problems include foreign material that should not have entered the
system, such as pop cans and even 2x4s which plugged the pumps.
A final area of concern to Mr. Barrett, and to all concerned,
is to the well-being of the operator at the Control Centre. The
operators work 12-hour shifts and from 4:30 p.m. to 8:00 a.m. on
Monday through Friday and on weekends he is the only person in the
plant. Accordingly, some safeguards have been put in place
concerning his health and safety. To this end, there is in place
a system whereby he is required to deactivate an alarm system every
30 minutes failing which an alarm activates the telephone answering
service and informs the person to contact the person on duty
informing him that the operator has failed to deactivate the alarm
and that he should go to the plant immediately. Once again
Mr. Barrett informed us that once the designated person on duty
receives such a call he calls the operator at the plant and if he
does not get an answer goes immediately to the plant. However,
Mr. Barrett did inform the Board that this has not occurred to him
but has occurred to others on three or four occasions.
It was Mr. Barrett's testimony that when called either at home
or on his pager he responded immediately to the call because he
did not know the severity of the problem. He indicated that if he
were called on his pager while, say, attending a baseball game he
8
could then not finish watching or playing the game because he was
aware that St. Thomas could possibly be out of water.
Similarly, if it was a sewage problem he could not be sure of
the situation, and it was his belief that he would be responsible
under the m if sewage spilled out of the
lagoon.
Mr. Barrett was then provided with a list of call-ins since
January 26, 1987 (Exhibit 2) with a short description of what the
nature of the call-in was. In hindsight, he indicated that some
were urgent and some were not, but he went on to say that at the
time he did not know until he reached the scene. In any event, it
was his testimony that he responded "quickly" (as opposed to using
the word "immediatelyl@) on each occasion.
Under cross-examination Mr. Barrett indicated that his
response time to the various locations could range from between 10
and 40 minutes. Given the worst possible scenario it was his
evidence that St. Thomas could be out of water within 30 minutes
of a failure during peak periods. So when asked that the possible
worst scenario could result in St. Thomas being out of water for.
10 minutes and if that could be improved by a stand-by system,
Mr. Barrett replied, "1 believe we are on a stand-by system.ll
Mr. John Apfelbeck is a long-time employee with the Elgin
Water System who testified that in July, 1989, he was called by the
operator at the Control Centre when a malfunction at the booster
station in St. Thomas sent off an alarm. This occurred shortly
after the supper hour and when he arrived at the station he found
7
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that the second duty line pump, that is pump #3, was not operating.
This, of course, left only one of the other two'pumps operating as
they will not operate simultaneously.' Mr. Apfelbeck started pump
#3 manually and he regulated the needle valve so it would continue
to run. He remained at the station until the water tank was back
up to its normal level and then he shut it down and worked on the
valve for approximately one-half hour at which time Mr. Roger
Power, the plant superintendent, arrived and informed him that they
were encountering low pressures. Moreover, Mr. Power informed
Mr. Apfelbeck that the operator could not reach him. Once again,
Mr. Apfelbeck started up the auxiliary pump to again fill the water
tank to its proper level. The point of this is that when the water
tank in the Elgin water system drops one meter, then the alarms
sound and the water system to St. Thomas is shut off. -One meter
in the Elgin tank system is approximately 20,000 gallons and when
there is a high demand by St. Thomas that 20,000 gallons will
disappear in less than 15 minutes. Mr. Apfelbeck informed us that
as soon as the Elgin water system is again restored to normal the
valves automatically open to allow water into the St. Thomas system
once more. It was Mr. Apfelbeck's opinion that the high demand for
the water and sewage systems was between the hours of 6:00 a.m. and
noon and 5:00 p.m. to 1O:OO p.m. It was pointed out under cross-
examination that 'St. Thomas has a reservoir tank that holds'
approximately 500,000 gallons and even if the valves closed
shutting off St. Thomas from the Elgin water system, it would not
mean that St. Thomas was immediately out of water. However, on re-
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7: -3
10
examination, Mr. Apfelbeck stated that in a peak period the 500,000
gallons would last approximately 20 minutes.
Mr.-Roger Power, superintendent of the water system, has been
an employee since 1970. He has been superintendent for a little
over one year and before that he was the assistant superintendent.
He has been a member of management for approximately 12 years. He
informed us that he was involved in the grievance procedure and a
memorandum to one of the grievors was introduced through Mr. Power
which had been authored by Mr. F.J. Bartlett who was then
superintendent of the Elgin Area Water System. It is dated
October 8, 1986 and reads as follows (Exhibit 6):
Re: Grievance on Call Duty
I feel on call duty is part of the
Collective Agreement and as such is a binding
agreement between the Ministry of the
Environment and its' employees.
Article 16-1 of the agreement states on
call as a period of time during which an
employee is required to be reasonably available
for recall to work.
The dictionary defines reasonably as
rational, just and fair. As the definition of
reasonable states to be reasonably available
for recall to work is not a definite time i.e.
15 minutes, one half hour, or whatever. It is
a time that is rational, just and fair, for
the employee and the Ministry.
The pager in my~ opinion has allowed the
on-call person more freedom of movement. With
the pager they can be reasonably available for
recall even though they are away from a phone.
It (the pager) gives the person freedom to
shop, dine out, sit in the back yard, visit
friends or relatives etc., as long as the time
to return to work is rational, just and fair.
11
To my knowledge .no employee of this
project was ever asked nor has it ever ~been
implied that when they are on call they keep
themselves available for immediate recall to
work as it states in article 15-l of the
Agreement for stand-by time.
Mr. Power testified that he does not regard being on the call-in
list and having to report for work when called connotes the same
degree of urgency as do the grievors. It was his belief that if
a problem arose late at night, such as a pump going out, he would
leave it until morning. He too made a list of the various call-
ins from 1986 through to November, 1989 (Exhibit 8) and rated the
degree of urgency, which in his view, each situation entailed.
These ratings rate from very low: to low; to moderate. It was his
position that none of the call-ins were urgent and when asked how
he felt about the response he was getting from his staff, he
answered, "Very good, and I thank them for it." He was asked what
instructions he gave to those on call concerning responses, and,
according to my notes,. responded, "All I ask is that they be
available - never stipulated a time limit - all use judgement well
- haven't encountered a situation where instantaneous response was
needed." When asked what he would regard as a reasonable response
time, he replied one hour. When asked what he would regard as the
requirement of stand-by he replied he would expect them to stay at
home and be ready to leave within 10 or 15 minutes.. It was his
view that a pump usually fails when it is shutting down which means
that the water towers are full and therefore there could be a
couple of hours lapse time before a major problem arose. Mr. Power
7:
12
informed us that he has said there is no need to go to a booster
station in the middle of the night and there is no need to get into
a second duty pump situation until about 8:00 a.m.
Under cross-examination, Mr. Power answered the lead-off
question, "Is it your understanding -- is it fair to say -- that
the operators have been led to believe that they are to respond
immediately?" Mr. Power answered, "Yes." But Mr. Power was not
prepared to be pinned down to admitting that a response to a page
within one hour was adequate in every circumstance. It was his
position that he wants the employees to reply as soon as possible,
but if it is within one hour then that is not a problem. Using the
July 18, 1989, situation that has been referred to above by
Mr. Apfelbeck in which the operator was unable to contact him while
he was repairing the pumps and Mr. Power was called to visit
Mr. Apfelbeck's area of work, Mr. Power was asked whether he
considered that to be one of urgency. He replied, III expect 'that
he would ask [the operator] if we are losing, etc., and if the
answer is yes then I would expect him to go reasonably." When
asked how quickly that-meant, Mr. Power replied, "It would depend
on where he is located.1' Mr. Power agreed with Mr. Apfelbeck that
if the valves to the St. Thomas system closed then St. Thomas would
have approximately 20-30 minutes water supply. Mr. Power was again
asked whether he *agreed that the employees respond as if they were
on a stand-by basis and he replied, "I have already acknowledged
that, and I appreciate it."
^
13
During the course of cross-examination and re-examination of
Mr. Power it was admitted, without objection, that the parties had
attempted to resolve this matter prior to this arbitration hearing.
We understand the discussions centred around placing these
employees on stand-by during certain hours while they were
designated to be available outside of normal working hours .
Mr. Roland suggested that those hours were between a:00 p.m. and
midnight, but Mr. Power replied that those hours were not in the
peak period of use.
It was Mr. Power's opinion that the degree of urgency in the
sewage system was considerably less than that pertaining to the
water system.
The evidence of the three above-mentioned witnesses consumed
approximately a day and a half. While we have attempted to set out
the evidence in some detail, it will be appreciated that we could
only highlight it at best. We also wish to point out that while
we have placed the words "on call," "on duty," and sometimes "stand
by" in quotes the reader should not interpret these quotations in
any particular way. We attach no special meaning to those words
as used. Before argument commenced the Board had concluded, based
on the evidence that we heard, that the grievances ought to be
allowed in part. We informed the parties of this decision and
indicated that it would not be necessary to proceed to argument.
Notwithstanding our ruling, we invited the parties to make
submissions in writing if they desired and we set time limits,
which were agreeable to the parties, when those submissions ought
c’:
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t,o be submitted. Both parties 'have subsequently made written
submissions which we have considered in detail.
It was our ruling that, based on the evidence, there are
certain hours during the day that require a greater urgency to
respond. Mr. Power had indicated in his evidence that the peak
period in the morning commences around 6:30 a.m. However, the
shift begins at 8:00 a.m. when all five grievors appear for work.
Having given this period as being one of the peak periods of usage
we considered whether this period ought to have been designated as
"stand by." However, we rejected this consideration for the
following reasons.
Assuming that a malfunction occurred around 6:30 a.m. the
operator would have to determine the nature of the malfunction and
decide whether such malfunction required the need to contact- the
l'on'calll' employee. Assuming further, that after giving the matter
consideration, the operator concluded that he ought to contact the
"on duty" employee we are of the view that the earliest time when
such employee could arrive at the site, under normal circumstances,
would be sometime between 7~00 a.m. and 8:00 a.m. But the-entire
crew is scheduled to commence their normal daily work schedules at
8:00 a.m. and, therefore, we would think that it would only be in
the extraordinary circumstances that the operator would contact the
"on duty" employee in this type of situation. .Moreo.ver, we were
not presented with evidence that this period of time caused an
inordinate number of call-ins due to malfunctions. Therefore, we
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ruled out the hours between 6530 a..m. and 8:00 a.m. as falling into
the category of "emergency response."
Mr. Power also informed us that another peak period begins
around 4:30 p.m. and lasts until 8:00 or 8:30 p.m. It is even
conceivable that the peak period could continue until 10:00 p.m.
It was our view, based on the evidence, that the hours between 4:30
p.m. and 8:30 p.m. require a greater sense of urgency in responding
to call-ins. Accordingly, we ruled that the period between 4:30
p.m. and 8~30 p.m., Monday through Friday be considered stand-by
time and the remainder be considered on-call time. The evidence
did not address weekends and statutory holidays and therefore we
are unable to make a determination regarding those days. We also
ruled that the grievances are to be allowed up'to 20 days before
the grievances were filed but that there is to be no interest paid
during this period.
We will now elaborate on the reasons for our decision. We
recognize that the parties have specifically provided for both
"stand-by time" and t'on-call duty" in their collective agreement.
A determination as to which situation applies can only be made
after hearing the evidence on each individual fact situation. It
is unfortunate that the parties have not been able to define what
they mean by "reasonably available" as cited in Article 16. We
have been referred to at least seven previous decisions of this
Board, some of which have allowed the grievances and others have
denied them. In the first decision involving Jamieson et al.
(Prichard), dated May 25, 1978, denied the grievance requesting
!.-
16
stand-by duty. In that particular situation the employees had been
informed by a memo dated August '24, 1977, what "on-call duty"
required of the employees. On page 4 of that award the memorandum
reads in part:
The employee shall respond to such call-back
in a reasonable length of time, which has been
defined as two hours.
The Board went on at page 8 to state the following:
We have considerable sympathy for the
employees' view; the system in its announced
form is restrictive of the employees and there
is no doubt that it has reduced their ability
to utilize fully their free time. Furthermore,
we understand that the critical feature of the
recall system from their point of view is the
contact requirement, not~the two hour period.
In many cases, it will be of little solace to
the employees to be informed that there is an
emergency but then to be reminded that they
have two hours to respond.
The next decision was Avvelle (Swan) dated March 14, 1979. On
page 5 of that decision the Board stated,
In the present case, however, there were also
instructions in writing. Exhibit 1, a
typewritten instruction sheet obviously
intended for maintenance mechanics on call (and
so identified by the grievor), includes the
following description of the responsibility of
the on-call mechanic when paged and informed
of an alarm:
The person Iton call" will have no
acknowledgement to make except to get to
the plant as ouicklv as vossible and clear
the alarm condition....[emphasis added by
the Swan Board].
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17
On the evidence before us, we are satisfied
that the grievor had ample grounds to conclude
that the instructions given to him required him
to report to the plant "as quickly as
possible," an expression which more closely
fits the "immediate" test of Article 15.
In the Avvelle case the Employer immediately responded to the
grievance setting out the reasonable test and consequently there
was only a short period of time that the grievance was successful.
In P. Walker and Wavne Tavlor (Samuels), dated November 10,
1982, the grievors were motor vehicle operators, employed in th,e
Transport Branch of the Ontario Provincial Police, who, during the
summer of 1982, participated in a rotational "pager schedule,"
carrying a pager on weekends and standing ready to drive a command
trailer if an emergency arose. One of the uses of these trailers
was to be taken to areas when needed to serve as a command unit.
They contained tables, chairs, telephones, telex equipment, and the
like. When emergencies arose the trailer was not necessarily
called in immediately. In 1982 a new system was put into place and
a new pager schedule was introduced for the on-call duty officer
for the command trailer. That memorandum reads in part as follows:
The pager allows you freedom to carry on with
your normal activities in the city. While on
call we ask that you be prepared to leave to
operate the command trailer at a moment's
notice... [emphasis of the Samuel's Board].
The Board went on to interpret that the meaning of "at a moment's
notice" meant that the operators were to consider themselves ready
to respond immediatelv and therefore the grievances were allowed.
18
This issue was again visited-in G. Monarain (Slone), June 30,
1988, which involved employees 'who were environmental officers
employed by the Ministry of the Environment. The grievors in that
case were all part of an emergency response programme that was
developed in early to mid-1986. The Ministry had come under
intense pressure from the public and the media for what had been
perceived to be a slow response to a major fire at the Chipman
Chemical Plant in Stoney Creek. The Slone Board reviewed the
jurisprudence and concluded that the assignments given to the
grievors was more clearly on-call duty as opposed to stand-by duty
and dismissed the grievances. However, the concluding words of the
award on page 14 are interesting. They read:
It would certainly be preferable for both
parties to have much clearer guidelines to
define more precisely the different states of
readiness required of the ERPs. The context
of "reasonable availability" is too general and
nebulous to be left as the final word on the
subject. Since reasonableness is always a
concept that has reference to a specific
context, it is for the parties operating in
that context to agree in advance on some
standards of reasonableness. Such local
standards would go a long way to avoiding
uncertainty and conflict.
Finally, there is the decision of S. (Emrich),
November 1, 1987, which also involved the Ministry of the
Environment. Ms. Emrich approached the issue somewhat differently
than the other panels in that she reviewed each situation that had
happened and drew conclusions as to whether each situation was a
stand-by or an on-call situation.
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In the instant situation we.know that the grievors consider
it to be their duty to respond to calls immediately. But where do
they get this understanding? There have been no instructions
issued by the employer that we are aware of which gives them any
clear understanding of what is expected of them such as was the
case in the Jamieson case, supra. Mr. Bartlett, in his response
to the grievance, which was reproduced above at pages 10 and 11,
simply stated that "reasonably available for recall to work is not
a definite time: i.e., 15 minutes, one-half hour, or whatever it
is a time that is rational, just and fair, for the employee, and
the Ministry." In our view, that statement~does not assist the
grievors in defining the meaning or the term "reasonably
available." We were not provided with any other written
instructions or definitions that had been given to the grievors.
We were provided with a memorandum dated November 13, 1972 to
superintendents and chief operators from Mr. D.A. McTavish,
Director, Project Operations Branch, relating to "on-call duty",
(Exhibit 7). However, there is no evidence that the employees were
made aware of this memorandum. Indeed, Mr. Power stated in his
evidence concerning instructions he had given relating to "on-call
duty" was that all he asked was that they (the grievors) "be
available" and he never stipulated any time limit. It was his view
that all of the employees used their judgements well and he has not
encountered a situation where instantaneous response was needed.
If in fact it is the position of the Elgin Area Water System plant
that one hour response time is adequate, it seems to us that this
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information should have been communicated to the grievors.
Moreover, Mr. Power candidly admitted that he believed the
operators were under the impression that they were to respond
8'immediately" and, if such were not the case, given his belief, he
ought to have informed the grievors that they were not required to
respond immediately.
While Articles 15 and 16 in the collective agreement stipulate
l'stand-by" and 180n-call'8 duty, it appears to this panel that the
employer cannot have it both ways. While it is true that the
employer has not instructed the grievors to respond immediately
the evidence 'is clear that the employer was aware that the
employees were operating under the understanding that they were on
"stand-by duty" and did nothing to change the grievers'
understanding. The employer was aware that the grievors considered
themselves to be obligated to respond immediately but said or
directed nothing to the grievors to indicate that they were
operating under a misapprehension.
In our view, ordinarily the employer must specifically give
directions that an employee is "on call" or "stand by" duty.
However, situations may arise, as in this case, where the employer
is aware that an employee believes that he is operating under the
stand-by article of the Collective Agreement and accepts the
benefit of his services on that basis, only to object later, such
as the circumstances of this case, which given these circumstances,
cannot be permitted to do so.
21
Finally, there was introduced a memorandum dated December 7,
1989 from Mr. Power to the St. Thomas Answering Service which
outlined a procedure to be followed should the answering service
receive an alarm from the Elgin Area Water System. This is in
relation to a situation where the operator failed to trip the
signal or alarm every 30 minutes as is required (Exhibit 4). The
memorandum reads in part as follows:
Message will state there is an emergency at the
plant: message will also inform you who to
call. The tape will give you the name and
phone number of one of the following people.
[There follows the names and telephone numbers
of the five employees who participate in this
rotating on-call duty.]
The memorandum then continues to state that if you do not get an
answer from one of the people listed, you are to wait for ten
minutes and then if you do not get a phone call from the person
they had paged, then start phoning the people on the following
list. (There follows. a longer list of names and telephone numbers
starting with Mr. Power,, the superintendent: Mr. Wayne Campbell,
the assistant superintendent: followed once again by the five named
people on the rotational designated list; and finally Mr. Mike
Auger, the regional superintendent.) The memorandum continues:
When you do contact one of the above people,
inform them that there is an emergency at the
plant. Once you have contacted one of the
above and given them the message, you will
have completed your involvement in this
particular incident.
22
Mr. Power stated that the reason he had used the word emergency was
to impress upon the answering service the urgent nature of
contacting someone as quickly as possible.
Finally, the reason we selected the 4:30 p.m. to 8:30 p.m. as
requiring more urgency was two-fold. Since January 1986 to
November 1989 there have been 44 call-ins. Six of these call-ins
have no times recorded when the call-ins occurred and so we deleted
these call-ins from the total. But the total number of call-ins
with times recorded is 38. Of the 38 call-ins, 16 occurred between
4:30 p.m. and 8:30 p.m. which represents 42.11% of the total.
Moreover, the evidence is clear that the period between 4:30 p.m.
and 8:30 p.m. is one of the peak periods when the system is being
heavily utilized. It was our conclusion therefore that the
employees "on call" during these hours must respond with a greater
sense of urgency than at other times. This is especially so in
light of the evidence given by Mr. Power that the response time can
indeed be up to one hour from the time the person receives the call
which in turn may take up to 30 minutes before being able to reach
the site of the problem. Accordingly, it is conceivable that an
hour and a half might elapse between the time when the initial call
goes out until the time the called in employee arrives. However,
we do not believe, based on the evidence, that such an elapsed time
during the hours of 4:30 p.m. to 8:30 p.m. would either be
desirable or acceptable. Accordingly, it is our decision that the
hours of 4:30 p.m. to 8:30 p.m. be considered llstand-by'@ and all
other hours be regarded as on an "on-call" basis.
9
t !
iT I
23
As stated above the grievance succeeds and the employees are
to be compensated as being on stand-by between the hours of
4:30 p.m. to 8:30 p.m. commencing 20 days prior to the filing of
the grievance but this compensation is to be without interest. The
Board will remain seized of its jurisdiction to assist the parties
in implementing this decision should it be necessary to do so.
Dated at Kingston, Ontario th is 3rd day of May , 1990.
‘\ ~ *
_. .‘, ~. 1~ , ‘. :i.” ~-’
C. G. Simmons
Vice-Chairperson
E. Seymour
Member
D. Montrose
Member