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HomeMy WebLinkAbout1985-0942.Crawford.87-12-01Between: OPSEU (S. Crawford) Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD and The Crown in Right of Ontario (Ministry of the Environment) J. Emrich Vice Chairman J. Anderson Member F. T. Collict Member For the Griever: I. Roland Counsel Gowling and Henderson Barristers and Solicitors For the Employer: R. Younger Staff Relations Advisor Staff Relations and Safety Ministry of Environment IilZa%inOS: -A-..- May 26, 1987 June 23, 198i Griever Employer This case was heard on the same day as and in conjunction with Re - OPSEU (Larkin) and Ministry of the Environment 941/85. Both Mr. Crawford and Mr. Larkin hold the position of Plant Operator at the water supply and pollution control plant at Red Lake, although Mr. Crawford held probationary status when his grievance was filed on October 3, 1985, whereas Mr. Larkin was a full-time regular employee. Mr. Crawford “as subsequently confirmed as a regular full-time regular employee. This position is classified as Waste and Water Project operator 1. The grievances were heard together, but separate awards are being issued in compliance with the request of the parties. The gravamen of the cases is to clarify the provisions of the collective agreement relating to “on-call duty” and “stand-by time”. The relevani provisions of the collective agreement are as folio%: ARTICLE 15 - STAND-BY TIME 15.1 “Stand-by time” uGms a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work. 15.2 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. 15.3 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. 15.4 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 DUTY lb.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 prior to the 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 (254) per hour for all hours such employee is assigned to on-call duty. Since his hire in November, 1984, Mr. Crawford has reported for technical direction to Mr. Cameron McIvor, Senior Operator at Red Lake and to Mr. Larry Benoit, Superintendant at Ear Falls for administrative direction. Ear Falls is located approximately 48 miles from Red Lake. Mr. Benoit is under the direction of Mr. Dennis Hosfield, Field Operations Engineer, Utility Operations Unit, who is based in Kenora, a distance of 160 miles from Red Lake. When Mr. Be&At is on holidays, the griever explained that the operators at Red Lake would report to Mr. Hosfield for administrative direction. Mr. Crawford identified his position specification, stating that it described in general terms the nature of his duties and responsibilities for the water treatment and distribution systems at Red Lake with its satellite operations in the surrounding communities of Madsen, Balmerton, Cochener and the Township of Golden. He explained that all the operators at Red Lake regularly work forty hours a week from 7:30 a.m. to 4:00 p.m. Monday to Friday. In addition, each operator is scheduled to work two eight hour shifts every fourth weekend. He added that he, along with the three other operators, are placed “on-call” for one week a month, comprising about 25% of his off-hours. He acknowledged that at the time of his hire, management had made it clear that he would be required to assume on-call duty on a 3 regular basis. The on-call duty and shift schedule is drawn up by the Senior Operator, Mr. McIvor, who shares in the work and on-call responsibilities. Mr. McIvor, as Senior Operator, holds a bargaining unit position. Mr. Crawford explained that by the time was employed in the fall of 1984 the operators were using electronic beepers to assist them in carrying out their regular daily work as well as their activities while “on-call”. Prior to this time, if a problem developed at any of the stations, an exterior red light would flash. It was expected that someone in the community would notice the flashing light and telephone the Red Lake station. These telephone calls from the public were received by a telephone answering machine which played a taped message asking the caller to contact the operator slated for call at that time, giving the home telephone number of the operator. This telephone answering system is still in place, but the operators are further assisted by the beeper which emits an electronic signal when an alarm is triggered by a malfunction in the process or equipment at the various stations. The signal is relayed to the annunciator panel at Red Lake headquarters. Mr. Crawford noted that the Madsen project still uses an exterior flashing red light to signal trouble. Mr. Crawford identified a list of alarms at the Red Lake plant and sub-stations to which he had responded while “on-call” during the 1985 year. The list reads as follows: 85/01/04 1/2 Low Lift Failure Madsen 85/02/19 Pump Out Hydrant 1198 R.L. 85/05/12 High Level 113 L.S. 85105131 B’Twn Low Level Wet Well 85/06/21 Flood Red Lake 85106125 Power Failure a5io7ti4 High Level W.T. 4 85/Ol3/01 Low Level W.T. 85/08/02 Madsen High Lift Failure 85/08/26 Madsen High Lift Failure 85/09/06 B’Twn Flood a5/09/17 Madsen High Lift Failure 85fiol25 CL2 Alarm W.T.P. 85/11/16 Abnoraml Residual W.T.P. 85112114 Pumps Locked Out W.T.P. The griever stated that he would report first to Red Lake headquarters to obtain information as to the location of the alarm if he saw no red light flashing at Madsen. Since he lives in Madsen, Mr. Crawford checks the Madsen project first before proceeding 10 kilometers to Red Lake. No printout of the nature or reason for the malfunction is communicated by the alarm, except if the cause has been a power failure. The beeper simply emits an’electronic signal. Thus, it is necessary for the operator to travel to the location of the alarm to ascertain the problem. He then takes whatever remedial action seems to be requisite. Since not all aspects of the entire water treatment and distribution system at Red Lake and environs are connected to the alarm system, operators still rely upon the telephone answering system for certain calls. For instance members of the public may telephone to warn of certain problems such as a flashing exterior light on a subs~tation or lack of water supply. Under the beeper system, the operator may undertake activities away from home but within the range of the beeper. The operator is also expected to remain accessible to the telephone to receive messages or to leave an uncomplicated trail with someone so he could be contacted when subject to recall. However, Mr. Crawford was prepared to accede that the beeper system allowed some degree of flexibility to carry out personal activities between calls 5 and to trade call between operators. Once alerted to a problem, Mr. Crawford emphasized that it was’ his custom to respond immediately. Generally this would entafl reporting to Red Lake headquarters to ascertain from the annunciator panel the location of the alarm; then proceeding to the particular project where the malfunction has occurred to take remedial measures. Once the repair is effected, he would return to Red Lake headquarters to cancel and reset the alarm. Mr. Crawford frankly acknowledged that he had never been given written instructions of assignment to stand-by duty. He was able to recall three occasions when he received oral instructions as to how promptly he was expected by management to respond to an alarm or telephone message while assigned “on call”. He recalled discussing response time with Mr. Benoit in the presence of Mr. Larkin. ?lr. Benoit, the operator’s immediate supervisor, was said to have stated that upon being notified, the operators were expected to “pull on their pants, scrape the windshield and go”. At the same time, Mr. Benoit clarified that Ministry vehicles were available to the operators during “on-call” duty, to alleviate the necessity of starting the operator’s personal car to travel to Red Lake headquarters. Mr. Benoit was said to have recommended using the Ministry vehicle when responding to a message while “on-call” in order to reassure the public that the malfunction and alarm were being remedied. Given the remote northerly location of these project sites, it is not surprising that winter’s cold temperatures render the starting of vehicles problematic. Mr. Benoit confirmed in his evidence that he permitted the use of a ?iinistry vehicle by an operator on call for the reason given. Further, he confirmed that when responding to a call from an irate member of the 6 public concerning a problem, that the operator on call should take time only “to pull on his pants, scrape his windshield and go”. Mr. Crawford also recalled that at the time of his hire, he was informed by Mr. Baranyck that he would be required to move from Ear Falls to Red Lake in order to respond to recall during -on call” within fifteen minutes. Mr. Crawford claimed that Mr. Baranyck again alluded to the need to relocate to close proximity of Red Lake when Mr. Crawford was sworn in as a civil servant. Mr. Crawford did relocate to Madsen, which is approximately ten miles from Red Lake and within the requisite proximity. Mr. Baranyck testified that the general practice of management in hiring for the position of Operator-Red Lake is to point out to the candidates that relocation expenses would not be paid and that the person hired must live within a radius of ten miles from Red Lake. Indeed a notice to that effect was on the face of the posting in September 1984 to which Mr. Crawford applied. Mr. Baranyck indicated that the general requirements of on-call are made known at the hiring interview. Mr. Hosfield testified that generally at hiring interviews he gives the example that if an operator on call is disturbed during his dinner by a call, he or she was expected to finish supper and then respond. When pressed on cross-examination to be more specific, Mr. tlosfield indicated that if the operator delayed as long as forty-five minutes to complete his meal before responding to the call, that this delay would be longer than expected. Neither Mr. Larkin nor Mr. Crawford could recall that Mr. Hosfield had given such an example to indicate the response time expected to a call. Although the witnesses were agreed that Mr. Benoit was present at the grievers’ hiring interviews, Mr. Benoit was not questioned concerning the illustration given by Mr. Rosfield for expected response time to a call or beeper. Mr. Baranyk, who was present at the hiring interview for Mr. Crawford, could not recall exactly what illustration was given by management to explain response time. In any event, the evidence shows that the grievers, Mr. Larkin and Mr. Crawford, were labouring under the impression that they were expected to respond to a call as soon as possible. In fact, the grievers were prompt in responding to their calls and management has been satisfied with their response to recalls. Mr. Benoit and Mr. Hosfield agreed that in order to assess the situation, the operator may have to check at Red Lake headquarters to ascertain which alarm has been triggered, then travel to the relevant project site to assess the problem and take measures to remedy it. Mr. Baranyk, the Manager of Administrative Services for the northwest region, confirmed in his evidence that when an operator was placed “on-call” he was not obliged to stay at home, but was required to leave a trail so that he could be contacted either by beeper or by someone about any telephone calls. He testified that he was familiar with stand-by operations and gave as an example snowplow operators with the Ministry of Transportation and Communications who are placed on stand-by when there is a snow storm imminent. He explained that stand-by duty is applicable to situations which are known emergencies or which are known to be imminent or predictable. He was insistent that the grievers were never instructed to be placed on stand-by. Rather, Mr. Baranyk claimed that the operators were told that when on-call, they were expected to respond within a reasonable time frame. However, Mr. Baranyk resisted quantifying the time frame to be considered reasonable, insisting that it was for the operator to decide, in the circumstances, subject to review by his or her supervisor. Mr. Benoit confirmed in his testimony that stand-by had never been approved in writing for the grievers or other operators over the fifteen years that the call system has been in place. on review of the call-in lists supplied by the grievers, Mr. Beooit commented that none of these precipitating incidents would justify approval of stand-by. No examples were given of the sort of incidents that would attract stand-by duty, other than the snow plow example given by Mr. Baranyck. He acknowledged however that in informal conversation with Mr. Larkin and Mr. Crawford in the depth of winter, he had told them that they had time enough to “pull on their pants, scrape their windshield and go”. He confirmed that he had advised them that a Ministry vehicle would be made available to an operator on-call to expedite his response. When pressed in cross-examination to quantify the expected response time to various situations of the sort identified in the grievers’ call list, Mr. Benoit maintained that the reasonableness of the response time would vary according to the circumstances and that it was a matter for the operator to decide. When questioned concerning the call at Madsen regarding insufficient water supply during a fire, Mr. Benoit explained that the fire department had hooked up its hoses improperly, thus causing the water supply problem which resulted in a fatality. In cross-examination Mr. Benoit stated chat he would expect the response to such a call to be as quick as pdssible, because of its life threatening consequences. He also agreed that an operator would not be able to assess whether a situation were life-threatening until the operator reached the project site to assess the situation, after checking the alarm at Red Lake headquarters. Certain memoranda were filed in evidence dealing with the conduct expected of operators in the event that a spill or bypass is detected. These memoranda were contemporaneous with the Spills Bill and the establishment of a Spills Action Centre in Toronto to field calls concerning spills in the environment. In a memordum dated November 25, 1985 from Mr. D.P. Caplice, Assistant Deputy Minister, the following comment is directed to Ministry employees at water and sewage treatment plants: Some spill reports will continue to come to staff in Regional and District Offices, other Branches and at water and sewage treatment works. MOE employees who receive spill reports at any time should immediately call the SAC, give the report details and what action the employee intends to take . . . Ensuring the SAC is aware of the report should help us to handle efficiently subsequent calls, which may come in during off-hours, and action on the same spill. (emphasis added) The foregoing memo is consistent with the evidence of both Mr. Larkin and Mr. Crawford who emphasized that they are the Ministry employees located closest to the Red Lake and satellite stations, and thus most likely to be contacted first in regard to spills at these facilities and the surrounding areas. In such circumstances, the operator may have to confirm a spill sighting, take some action to contain it, if possible, and alert other Ministry personnel, the SAC and public authorities. Indeed, Mr. Larkin related an incident which occurred during working hours when a local pilot had left a telephone message that there was a gasoline spill. When Mr. Larkin telephoned Kenora headquarters to report the spill, he was instructed to travel to the site to confirm its location and size and then telephone a report. 10 On Xovember 25, 1986 the griever’s immediate supervisor issued a memorandum to the Red Lake operators and to Mr. Hosfield dealing with spills of raw or treated sewage in planned or emergency situations. Such an occurrence is usually called a “bypass”. The memorandum read as follows: Emergency Situations: These are the steps to follow. 1. Contact your supervisor immediately and advise him of incident. 2. If unable to reach L. Benoit, contact M.O.E. Kenora District Office at l-468-5578 and ask for Dennis Hosfield (home - 548-5125) or Dave Mundy (home - 548-4652) or Peter Fox (home - ) or John Barr (home - 548-5039). If after office hours - call these people at their home numbers. Note: If unable to contact any of the above at these numbers, then call Spills Action Centre (SAC) at l-800-268-6060 and ask for M.O.E. Kenora Office contact person. 3. The operator must be able to evaluate the situation. (ie) - amount of sewage and time,of bypass incident If you estimate it will take more than 4 hour to resolve the problem call your supervisor. Are there any public health concerns. Detailed incident records must be kept current and entered into bypass book. 4. Final - completed Report of Incident to be forwarded to your Supervisor, L. Benoit. Planned Situations: 1. Discussion with Supervisor, L. Benoit, to take place prior to planned bypass. 2. Supervisor, L. Benoit, will notify M.O.E. Kenora District Office of planned bypass. L. Benoit Superintendent cc Red Lake Area Operators Ear Falls Operators Dennis Hosfield (emphasis added) 11 It is apparent from the terms of this memorandum that the grievers were expected to take some immediate action upon discovery of an emergency bypass by advising supervision, assessing and undertaking remedial action. Mr. Larkin testified in cross-examination that at least four spilis of raw sewage at Red Lake had occurred since 1983. When questioned whether the length of response time would prevent a raw sewage spill, the grievers responded affirmatively, adding that a pump can be reset before a high level alarm goes off. Mr. Crawford indicated that on June 21, 1985 he was called in to deal with a bypass of untreated sewag’e into Red Lake resulting from a severe storm. A similar situation occurred on September 6, 1985 at Balmerton, but not during Mr. Crawford’s regularly scheduled call time. Both grievers agreed that calls caused by a power outage were serious because loss of power to the pumps would result in no water supply to the community served. Furthermore, a shutdown of the pumping system or a blower malfunction would interrupt aeration in the sewage treatment process which requires dissolved oxygen. As well, the clarifier which controls movement of the sludge would cease functioning with the result of possible damage to the arms. Another call which Mr. Crawford considered to be critical occurred on April 1, 1985 when a low lift failure occurred at Madsen. The fire department was said to have improperly hooked up its fire fighting equipment to the water supply. The result was insufficient water supply and pressure to feed the hoses. The fire which the fire fighters were struggling to quench caused a fatality. The griever explained that this alarm indicated 12 that there was insufficient chlorination of the water supply. While low levels of chlorination would not necessarily result in contamination to the extent that a “boiled water” order would be required, the grievers were under the impression that management expected prompt action to be taken with such a problem. On April 7, 1987, Mr. Hosfield issued a memorandum to Mr. Benoit, among others, dealing with spills, overflows, bypasses and incidents of that nature. The contents of the memorandum read as follows: I am-sure that you have all heard of such things as Bill 112, the Spills Bill, and that the MOE is getting tough and prosecuting polluters. You should also be aware that consideration is being given to how to prosecute MOE plants and personnel over unapproved discharges. All plants whether private, municipal or MOE operated are subject to the same laws. There is no exemption for MOE operated plants. As is always the case, there is a great deal of confusion over what type of incident and who is liable for prosectuion. I would therefore ask you and your staff to be well aware of the following. Any individual should be able to avoid prosecution if he shows due diligence in his duty and is not negligent. There is nothing new in these guidelines. Therefore, as far as plant operating personnel are concerned, it’s business as usual with regard to spills, overflows, bypasses, broke” sewer and water lines. As quickly as possible, we take whatever measures are available to us to limit the occurrence. Public health concerns and protection of the environment are of primary importance. In addition the following reporting procedures must be followed. For abnormal spills, overflows, bypasses, broken sewage or water lines, advise me or a member of the Kenora staff at once. We will make the decision whether to advise SAC. Any occurrences should also be written up in the plant’s log. These occurrences should also be written up in the plant’s monthly report. In cases of sewage treatment plants which are designed to allow for bypassing under hydraulic overloading conditions, or watermain breaks where no damage is done to property, report these incidents to me during normal working hours. I will ensure that the environmental officers are informed. 13 If you or your staff are unable to contact myself or a member of the Kenora staff and are in doubt as to the seriousness of the incident, advise SAC at once at l-800-268-6060 (Toll Free 24 hour number). To date I am not aware of any MOE plants that face prosecution. However many of the municipal and industrial prosecutions are for “failure to report”. It is therefore extremely important that the reporting procedures be followed. Please advise if you have any questions or comments on the above. It is apparent from the terms of the foregoing memorandum that the operators at Red Lake were expected by management to take remedial measures as quickly as possible for such occurrences as spills, overflows, bypasses, broken sewer or water lines. It must be borne in mind that the operator on call cannot detect and assess the exact nature and extent of the problem triggering the alarm until he arrives at the project site. Unless a telephone message is left giving particulars of the presenting problem, the operator is first notified by the beeper signal that some alarm has been triggered. He must then arrange to report to Red Lake headquarters to ascertain which alarm has been triggered. At this stage, the operator would glean some information as to the general type and location of the problem. The operator would then travel to the project site to assess the situation and take remedial action. Thus, to respond as quickly as possible to such incidents as a bypass, spill, overflov, broken sewer or water line, the system demands that the operator take action in response to a beeper call at once. Indeed, this is consistent with the tenor of the memoranda, and the instructions which Mr. Benoit gave when he indicated that an operator should “pull on his pants, scrape the windshield and go”. The grievers’ practice has been to respond immediately to all calls and the evidence indicated that management was satisfied with this response to recalls. 14 It was not until after the grievance was launched that management gave written clarification of its expectations regarding operators’ response time on call. Mr. Vrooman, Regional Director for the tiorthwestern Region, gave the following clarification at Stage 2 of the grievance procedure in response to Mr. Crawford’s grievance. The gravanen of the distinction between “on-call” and “stand-by” is set out in the following terms: At the time of your appointment and on many occasions since, you have been made aware that the “on-call” provision would be applied under certaincircumstances where you were required to be “reasonably available” for return to work. At no time’vere you given instructions that the Ministry, as your employer, required you to be on “stand-by”. In my view, “stand-by” is a procedure which comes into effect when environmental emergency conditions actually exist or can be imminently predicted and the employer’s intention is to hold affected employees available for immediate recall to work. This would be necessiated only by conditions of the most serious magnitude such as a severe stormor major environmental spill. It certainly would not be appropriate under the conditions described in your argument at the grievance meeting, i.e.: during off hours duty of on-going availability required in sewage and water treatment plants and duties which arise from breakdowns in the physical operation of the plant. (emphasis added) Consistent with this distinction was the evidence of Mr. Baranyck who offered as an example of stand-by duty, the assignment of snowplow operators during or before a winter snow storm. Mr. Crawford’s evidence was to the effect that of the fifteen calls to which he responded in 1985 only those caused by power outages, or those causing insufficient water supply or contaminiation of the water supply pose any significant threat to public health and safety. The grievers indicated that power failures were quite a common occurrence in the region from thunderstorms. Mr. Hosfield concurred that low levels of 15 chlorination in the water could pose a threat of contaminated water supply; yet in his testimony which was uncontradicted, he indicated that water quality in ~a11 the Red Lake area is quite good, without significant contamination. The only exception given was the long standing boiled water order at McMarmac. Co”seque”tly , a problem with a low chlorine residule would be more of a routine operational nature. Mr. Hosfield also explained that eve” with a power outage, most of the projects, except at Madsen, are equipped with diesel engines as a back-up system. At Madsen, the town would be without water during a power outage. However, until Ontario Bydro restored the supply of electricity there would be nothing the operator could do. On the prepondence of evidence, the Board finds that the calls during 1985 to which the griever attended posing the most significant threat to public health were those concerning power outages at all projects. The operator would carry responsibility to sea that the projects were functioning on the back-up systems to ensure water supply. The foregoing review of the evidence indicates that at no time were the dperators at Red Lake given any explicit instructions to be on stand-by time. The only explanation which all parties agreed had been provided concerning the expected response time to a call when assigned to. “on-call duty” was given after the beeper system was introduced by Mr. Benoit when clarification was sought by the grievers. Mr. Hosfield could not recollect exactly what he told either griever at the time of hire but indicated that he generally gave the example that an operator could wait to finish his supper and the” leave. In cross-examination, Mr. Hosfleld indicated that a delay of 45 minutes would seem excessive unless the operator had a reasonable explanation. Mr. Benoit indicated 16 that the appropriate response time to a call was a matter for each operator to judge, subject to review by management. Red Lake is a small community and the operators are required to live in close proximity to the headquarters. However, to allow the operator to respond to an alarm within that time frame, the operator would have to act promptly to report to headquarters and subsequently the location of the alarm. Upon all the evidence, it is clear that the grievers were left with the impression from management that they were expected to respond immediately to each call. It was not until after the grievance was launched that management explicitly delineated the difference between on-call and stand-by duty. The Board was directed to a number of cases which consider the distinction between stand-by and on-call duty on collective agreement language that is similar to or identical to the language of the collective agreement applicable in this case. In Re O.P.S.E.U. (Jamieson et al.) and Ministry of Community and Social Services, 162/77 management had initiated an on-call duty system which required the grievers, who held the position of plumber, to wear a pager while on-call and advise the switchboard of where to be contacted. In a written memorandum, the supervisor had stated that “The employee shall respond to such call-back in a reasonable length of tine, which has been defined as two hours”. The pager had a range of 15-20 miles and the plumbers could trade on-call duty with one another. At p.8 the Board commented as follows: By providing both Article 15 and Article 16, the parties have indicated their intention to create two different statuses. To give the agreement integrity in its interpretation we must recognize that by creating the category of on-call duty, the parties must have intended to restrict the application of 17 stand-by time in Article 15 to situations where there is little flexibility in the requirement that the employees be immediately available. The on-call duty provisions must then contemplate a relatively wide array of arrangements for ensuring that employees will be available for recall. The Board held that the grievers were appropriately paid the on-call rate for their recall to work. The Board was influenced to reach its decision by the following factors: the flexibility and freedom of movement introduced by use of the pager system; on-call duty could be traded among the employees without prior authorization; and because the expected response time was two hours with possible extension. Furthermore, the Board appeared to draw a distinction between “emergencies” and “trouble situations” with the latter being more appropriate for the operational breakdowns that the grirvors dealt with. on-call. At pp.%10, the Board observes: . . . we recognize that any system of recall will necessarily involve an element ~of immediacy in the means of contact. The initial contact by telephone or pager will almost always be as soon as possible after the emergency or trouble arises; that is the very nature of a recall system. Therefore the classification of the system must include a consideration of all circumstances including the time allowed employees in responding. I” this regard, we were also influenced by the fact that while the situations at the Centre requiring a call-back are deemed to be “emergencies”, in many cases, “trouble situations” might be a more accurate description. At p.9 of the decision, the Board in Jamieson articulated the principle that regard must be had to all the relevant circumstances in deciding whether the recall is on an “immediately available” basis or on a “reasonably available basis”: In one view, each case of this kind will require a judgment based on a consideration of all of the relevant circumstances and in recognition of the fact that the parties have created the two separate statuses. The particular arrangements will vary from workplace to workplace and a decision in one setting may not be readily transferrable to another. In Cloutier et al. 128177, the grievers were employed in the classification of Mechanic 2 with the Ministry of Transportation and Communications. Each griever was scheduled for “on-call” duty on a rotating basis. The Board focused on the direction given to the grievers by management. At p.4 the Board found that there was no written evidence of any employer direction as to the status of employees subject to recall, but states “it is clear that, from the beginning they knew that the Employer was relying on the “on-call duty” provisions of the agreement”. At p.5 the Board concluded that the grievers were properly treated as being on-call: The only specific instuctions ever issued appear to have related to the necessity of leaving a phone number where one could be reached, which we find to be a not excessive element- of being “reasonably available”. In Appelle, 147/76. a case heard by the same panel of the Board and in conjunction with Cloutier, the Board also focused on the nature of the expectations communicated to the griever by management. The facts of this case have many interesting similarities to the facts before this Board. The griever was issued a pager when “on-call”. The water pollution control plant was left unmanned during off-shift hours, but an alarm system monitored all critical functions. In the event of a breakdown, an alarm was transmitted to a pumping station which was manned on a twenty-four hour basis or to a commercial answering service. These latter two agencies were responsible for contacting the “on-call” mechanic who was responsible for clearing the alarm and performing the required maintenance operations. There was no evidence of oral communication to the griever of what was expected of him in response to calls. There were written instructions which gave the 19 I . following description of the responsibility of the 0n-~al1 mechanic which were reproduced at p.5: The person -on call” will have no acknowledgement to make except to get to the plant as quickly as possible and clear the alarm condition . . . The Board held that the instruction to report to the plant “as quickly as possible” connoted immediacy within the meaning of of Article 15.1 (which has remained unchanged). After his grievance was filed, management responded, stipulating that the griever was to consider himself only reasonably available. However the Board held the griever entitled to stand-by pay for his week of call duty worked prior to the filing of the grievance. In Novak and Humphrey 141/81, the grievers claimed stand-by pay for time spent as Designated Duty Officer which required them to carry .a pager, maintain contact with an answering service and respond to calls respecting fish and wildlife infractions or injuries. In the event that the call concerns fire or flood emergencies, the grievers were told to act quickly by advising senior staff immediately, the latter being responsible for implementing a fire or flood plan. The Board found that management had told the grievers that they were free to attend to personal errands and social functions, provided that they responded as soon as was reasonable to the pager. The Board held that this flexibility was typical of “on-call’: responsibility stating at p.5: We feel that the concept of standby pay is reserved for these situations in which an employee is required to virtually sit at home by the telephone “ready to go”. 20 Pivotal to the Board’s decision in this case was the fact that the flexibility the grievers had while on-call had been communicated clearly to them by management. All the foregoing cases were reviewed in Walker and Taylor 417 and 418182 and at p.13, the Board distilled the following general conclusions: While each of these cases turned on its oWn facts, there are some general conclusions which can be drawn from the jurisprudence. Firstly, the matter is not decided simply on the language which the Employer tises. Merely calling the pager system “on-call” does not make it an Article 16 situation. The question is what are the real requirements of the duty. Secondly, one gets at these real requirements by examining the circumstances of the job, and the written and verbal instructions to the employees. In the Walker and Taylor case, the grievers were Motor Vehicle Operators employed in the Transport Branch of the Ontario Provincial Police. They were scheduled for call with a pager on a rotating basis, to operate the Command Trailer which was used as the central communications unit on site at emergencies. The Command Trailer had previously been used, to the griever’s knowledge, for a major air disaster at Toronto and train derailments at ?lississauga and Orillia. The Board noted that management had issued written memoranda that indicated that the grievers were scheduled to be “on-call” and that the pager which they carried allowed freedom to carry on with normal activities. However, the Board concluded that it was unreasonable to conclude that the grievers, once notified by the duty office of the need for the Command Trailer to coordinate activities at the site of some disaster, that the employee on call could respond on any other basis than immediately. At p.10, the Board comments: 21 The only reasonable conclusion is that the driver must obey the duty officer who orders out the trailer immediately in response to a Mississauga train derailment or a najor air disaster, or some other like situation. In consequence, the Board held the grievers entitled to stand-by pay for hours spent subject to call by page to operate the Command Trailer up to October 3, 1982 when the pager system was abandoned. In the instant case, the review of evidence disclosed that management from the time of hire advised the griever that he would be required to work on-call duty. In order to facilitate a prompt and reliable attendance at work and for recall over the harsh winter season when travel can be difficult, the griever knew he was required to live in close proximity to Red Lake headquarters. Since 1984 when the beeper system was introduced, the griever knew that he could carry out his normal activities provided that he left a trail for contact concerning telephone messages and provided he carried his activated beeper tom signal the triggering of any alarm. While on call, the griever is responsible for attending to the repair of the operational breakdowns which trigger the alarm systems at the Red Lake headquarters and satellite plants. It is apparent from the evidence that the majority of the alarms to which the’grievor was called upon to respond in 1585 did not involve significant danger to public health and safety. Upon the foregoing evidence, without more, the indicia of relative flexibility to attend to personal affairs while carrying the beeper, the instructions at hire, and the nature of the precipitating incidents would seem to lead to the conclusion that the griever was properly treated as being on call. 22 However, it is clear that if the griever vere required to take action while on call in relation to spills, bypasses, overflows, or breaks in water and sewer lines, that such precipitating incidents are considered emergencies requiring action to be taken at once. This is apparent from the evidence of the serious consequences flowing from such incidents and by the terms of the memoranda from management of November 25, 1986 from Mr. Benoit and that of April 7, 1987 from Mr. Hosfield. While management speaking through its vitnesses conveyed the impression that the role of operators would be minimal in the event of a major environmental spill in their region, the preponderance of evidence does not support that characterization. Mr. Larkin testified that if his role were confined simply to calling the Spills Action Centre to convey a report of a spill, he would not make a call-in report. However the evidence indicates that operators are expected to confirm spill occurrences by travelling to the site and to provide comment on the severity of the spill before Abatement staff are dispatched. If the operator can take measures to contain or limit the occurrence, he is expected to take such remedial action as quickly as possible. This is eminently sensible when it is borne in mind that the operators would be the personnel most closely located to the site of such an ~emergency at one of the projects or within the greater Red Lake region which they serve. Management is located a distance of 48 miles away at Ear Falls or 160 miles away in Kenora, or in Toronto. Thus, the Board concludes that if an operator were required to respond to a call precipitated by an emergency such as an unplanned bypass, abnormal spill, overflow, broken sewer or water lines or incidents of like nature, he would be expected to respond immediately and anything less 23 . would risk characterization as lack of due diligence. Moreover, when attention is given to the way in which management’s expectations as to the rapidity of the response to a call were communicated to the grievers, the evidence indicates that all responses were expected to be prompt. Shortly after the beeper was introduced, the griever sought clarification from supervision as to the response expected. The Board finds that the response of Mr. Benoit “to pull on your pants, scrape the windshield and go” reasonably conveys a notion of urgency and immediacy within the meaning of Article 15.1. Certainly, even Mr. Hosfield indicated that a delay of 45 minutes would not normally be anticipated. The Board finds that the grievers understood Mr. Hosfield to have indicated that the normal expectation was to respond within half an hour to a call. Given the necessity of the operator reporting first to the Red Lake headquarters to ascertain the location of the alarm, then proceeding to the project site at which the alarm has been triggered, an expected response time of thirty minutes must be considered very prompt. It was not until after the grievance was filed that management took the initiative to convey to the grievers explicitly how it would distinguish stand-by time from on-call time. Prior to that time, the operators were left to exercise their own-discretion in a managerial vacuum of the sort commented upon by the Board in Cloutier and Appelle. Given that the beeper system gives no information to the individual operator as to the precise nature of the precipitating incident triggering an alarm, and given the expectations of prompt action communicated to the griever by his supervisor, without clarification of any distinction between the sorts of incidents for which stand-by time would be payable and those for 24 , which call-in pay is applicable, the Board finds that the griever had reason to conclude that he was entitled to stand-by pay because he was being kept immediately available for recall to work. Management argued that the griever could not be on stand-by because no stand-by had ever been authorized in writing. Stand-by was said to be applicable only to circumstances of environmental disaster with horrendous consequences to public health and safety. Mr. Crawford pointed out that no specific examples had been communicated by m.?.*ageme*t. If stand-by cannot be authorized in advance of a disaster for which there may be no forewarning, surely stand-by could be authorized to deal with the catastrophe once it has occurred. Even the wording of Article 15.2 envisages such a scenario and adverts to the possibility that stand-by may have to be approved after action has been taken in response to a disaster or environmental threat, in circumstances beyond the Employer’s control. Furthermore, as indicated in the Walker and Taylor case, it is the real requirements of the duty as shaped by the nature of the precipitating incident which determine the appropriate rate payable, and not the language alone by which the Employer chooses to characterize that duty. In the instant case, usually it would not be until after the operator attends at the project site to investigate the problem which has triggered the alarm that the operator would ascertain whether it was an emergency such as a bypass, overflow, spill or break in a sewer or water line had occurred, or merely the usual sort of operational breakdown in the equipment or process. The operator would file a call report setting out the nature of the problem and the measures taken to resolve it. From this report, management could determine vhich 25 incidents were -emergencies” and which incidents were “trouble situations” using the terminology of differentiation employed in the Jamieson case. Turning to the evidence filed as Exhibit U19 of the sixteen calls attended to by Mr. Crawford in the 1985 year, the Board finds that in the absence of clarification of the distinction between emergencies and troublesome situations provided by management and given the expectation of prompt response communicated to the griever by management, the griever is entitled to be paid the stand-by rate of pay according to Article 15 for the following calls which were substantiated in the evidence as involving problems of some gravity to public health: January 1, 19g5 - 112 Low Lift Failure, Madsen; June 21, 1985 - Flood, Red Lake; June 25th, 1985 - Power Failure. Thereafter the-griever would be entitled to stand-by pay only for those calls to which he responded immediately which were precipitated by conditions of the most serious magnitude such as a severe storm or major environmental spill. Some elaboration of such incidents is contained in Mr. Hosfield’s memorandum of April 7, 1987 for which limiting measures are to be taken as quickly as possible. The grievance is allowed. The Board reserves jurisdiction to deal with problems arising from the implementation of the award which the parties are unable to resolve. 26 I Dated at Kingston on this 1st day of December1 1987 i \... ._ ! - Jan+ E. Emrich Vice-Chair I "I dissent" (Dissent attached) F.T. Collict Member 27 . DISSENT The concept of call-in pay is very common in business, industry and government: The usual situation is that a pipe may burst in a plant or office during off hours when a maintenance employee is not available. A security officer may phone a supervisor who, in turn, will phone one of his tradesmen to come in to fix the condition. The supervisor may phone several of his tradesmen before one agrees to come in to fix the pipe; but ~when the tradesman does agree to the call-in he comes in to work as quickly as possible to perform the required works; and he does this even though he is not "on call" or "on stand-by" in the sense set out in the subject case. Essentially, "call-in", by its very nature, results from a condition that normally could not have been anticipated but which cannot wait until regular shift hours when maintenance or other people are available to correct the condition or matter that gave rise to the call-in. Accordingly, "call- in", in and of itself, implies a demand for immediacy. ,The parties to the Collective Agreement in this case have recognized the need to periodically call employees to work during time periods when they are not scheduled to work. As as result they have included Articles 15 and 16~ in the Agiee- ment with reference to both "stand-by" and "on call" duty. Article 16 is particularly important where, as in this case, the griever is located in the Red Lake area and Larry Benoit, his superintendent for administrative.,direction, is located 48 miles away in Ear Falls. . . 2. Article 15.1 states that ” . . ..an employee keeps himself available for immediate recall to work”. Article 15 (re “stand-by time”) is a further refinement of the call-in concept and it is one which, as set out in Jamieson et al, 162/77, is related I . . . . to situations where there is little flexi- bility in the requirement that the empl,oyees be immediately available.” That is, if Management knows in advance that there will be a broken pipe or a sewer back-up, etc., employees may be scheduled to stand by. This language implies having one’s feet “in the blocks”, as it were, ready to sprint when the instruction is given; and ‘this is quite different from the 30 minutes~of response time which was available to the grievocs as understood by both grievors Laskin and Crawford and their manager, Mr. Hosfield. (see p. 23 of award) The evidence in this case advanced by both grievors Larkin and Crawford was that Larry Benoit, their superintendent, had endeavoured to explain the type of response he expected from them as expressed in the following statement. He said her expected them - “to put on their pants, scrape their windshield and go”. Larry Benoit agreed that he gave this illustration as the type of response he expected. However., in the view of this Member, the essence of “stand-by” is - “having one’s pants on and having the windshield scraped”, on the expectation that an alarm will occur; and that the I, . . . . employee keeps himself available for immediate recall to work”, as set out in Article 15.1. In particular this illustration is quite applicable if one is not wearing work clothes or is in bed at night when an alarm situation occucs. . . . c 3 In Novak and Humphrey 141/81, the Board similarly concluded that “We feel that the concept of stand-by pay is reserved for these situations in which an employee is required to virtually sit at home by the telephone ‘ready to go’.” (p.5) It should be noted that by contrast with the above inter- pretation, in this case, “The Board finds that the grievers understood Mr. Hosfield to have indicated that the normal ex- pectation was to respond within half an hour to a call.” (p.23 of award) The evidence was somewhat confusing as to whether the one- half hour was the response time to travel to the site which triggered the alarm, or whether it was the time available before the grievor was to respond to the alarm. xt would ‘seem clear from the award at page 23 that the award presumes the former. The understanding of this Hember was that the one-half hour figure was the suggested time it might take the grievor to respond.to an alarm. This understanding resulted from the very considerable evidence presented by witnesses concerning whether or not one could finish watching a base- ball game when called, finish shopping, be reached by one’s wife who would relay a phone call indicating an alarm, etc. rn any event, having a one-half hour response time is quite different from a condition of virtually sitting at home by the telephone - “ieady to go” - as the Board interpreted the “stand-by” provision of Article 15.1 in Novak and Humphrey, 141/81 (p.6). On call, on the other hand, means precisely that. One might be called; and one is paid as set out in Article 16.3 for the inconvenience of keeping oneself “reasonably available”; and that a call situation MIGHT actually occur. . However, when called (by phone or the beeper), it is ex- . 4. petted that the individual on call will respond; and that readily can mean climbing out of bed, putting on one's pants and subsequently cleaning off the windshield in order to drive to the Red Lake station. The analogy given by Larry Eenoit to the grievors is not inconsistent with what is expected of someone who is "on call" and is reasonably available; but it is quite different from someone who is "wearing his pants" and is expecting .a phone.call to go to work IMMEDIATELY when the alarm occurs. In evidence, the grievors stated that they could go shopping, to church, to a ball game, fishing, etc. As long as the individual on call was "reasonably available" he was meeting and fulfilling the on-call requirements of Article 16.1. To go shopping, to attend a church service! a ball game or to go fishing, in the view of this Member, is not keeping oneself "available for immediate recall to work" as required by the stand-by provisions of Article 15.1. Moreover, the fact that the grievors could "trade-off" their on-call responsibilities and could balance the schedule themselves is in conflict with the requirement set out'in Article 15.1 of II . . . . an employee (who) keeps himself available for immed- iate recall to work". Additionally, the direct evidence of B. Larkin as set out at page 5 of the award is, in the opinion of this Member, quite consistent with the requirements of Article 16.1. NC. Larkin's evidence was that "Formerly he would have had to remain accessible to his telephone at home and could attend to activities and errands outside home if he arranged for someone to monitor his telephone messages and notify him if a call were received. Since not all aspects of the entire water treatment and distri- bution system at Bed Lake and environs are connected to the alarm system, operators still rely upon members of the public to notify them by telephone of certain problems such as a flashing . \ 5. exterior light on a substation or lack of water supply. Under the beeper system, the operator may undertake activities away from home but within the range of the beeper. As an example of the in- creased flexibility of the beeper system, Mr. Larkin explained that he could attend a baseball game at Red Lake while on-call pending being alerted by beeper or by his wife of a telephone message. Once alerted to a problem, Mr. Larkin emphasized that it was his custom to respond immediately. Generally this would entail report- ing to Red take headquarters to ascertain from the annunciator panel the location of the alarm, then proceding to the particular project where the malfunction has occurred to take remedial measures. Once the repair is effected, he would return to Red Lake headquarters to cancel and re- set the alarm.” (p.5 of award) Grievor Larkin’s evidence, as set out above, is reflective of the way in which Ministry Management contemplated the nature of the duty to be performed and the type of circum- stances surrounding the call-in duty. Management had assessed its responsibilities and in face of the many emer- gencies and circumstances that might impact its facilities had determined that a method of operation should.be estab- lished to deal with them. This procedure was that em- ployees should be placed on a rotational “on-call” duty status so that ‘I.... an employee is required to be reason- ably available for recall to work”. This is what the lan- guage of the Collective Agreement provides for; and this is what Grievor Larkin indicated in his testimony. While “on- call”,~ he was reasonably .available for .recall to work. . Finally, this Member does not agree with the statement in the award on page 24, as follows: “Furthermore, as indicated in the Walker and’Taylor case; (417 and 41&?/82), it is the real require- ments of the duty as shaped by the nature of the precipitating incident which determine the approp- riate rate payable, and not the language alone by which the Employer chooses to characterize that duty.” . 1 6. Whether the grievor responds to a “troublesome situation” or to an “emergency” does not determine the nature of the duty to which he was assigned. Obviously it is agreed that Management cannot expect an em- ployee to react to a call as though he were on stand- by status and then expect to characterize it as “on call”. In this sense it is agreed that “language alone”‘, cannot define the nature of the duty. However, should an individ- ual assigned to “on call” duty status respond to an alarm, and then find that it is a dire emergency - this situation surely cannot re-define the duty status to stand-by. It is in this sense that this Member is in disagreement with the award statement at page 24 to the effect that II . . . . it is the real requirements of the duty as shaped by the nature of the precipitating inxdent which determine the appropriate rate payable.....” (underscoring added) As set out in Walker and Taylor 417 and 418/82, “The question is what are the real requirements of the duty . . . .(and) one gets at these real re- quirements by examining the circumstances of the job and the written and verbal instructions to the employees.’ (p.13) Additionally one can distinguish this case from Bedard et al 1281/85 to 1294/85 where the Board stated that, (0 . . ..where as here the service needed is directed at the protection of human life, the called for . response e, and should be, immediate.” (Ambulance Officers, Ministry of Health, p.6.) In this case the Board (Bedard et al) related the relative immediacy of a required response to a call for some public service, to the nature of the public interest that is threatened. The Board also took into account than an ex- pectation that an employee who is exp:cted to report to work within l%minutes having regard to the fact that some of that . . r time will of necessity be consumed by travel time, is “brief’. As stated by the Board in that case, “The expected time for response here is so short that there is no flexibility in responding to a call . . . . once the call comes in they must, of necessity, respond immediately”. (p.6,7) The above does not obtain in the subject case and is readily distinguishable from it. In summary then, and as set out in Jamieson 162/77 at p.9, 10 II . . ..we recognize that any system of recall will necessarily involve an element of immediacy in the means of contact. The initial contact by telephone or pager will almost always be as soon as possible after the emergency or trouble arises; that is the very nature of a recall system.” Jamieson (162/77) p. 9, 10 Hence, the need for immediacy will always characterize call-in situations. Secondly, in establishing a stand-by provision as well as an on-call provision in the Collective Agreement the parties recognized the need for a duty status that allowed very little flexibility as to the availability of an employee. As stated in Article 15.1, “Stand-by time means . . . . . an employee keeps himself available for immediate recall to work.” The evidence from both Management and Union witnesses in this case indicated that all responses while on duty were ex- pected to be prompt - which is consistent with the “generic” nature of the requirement of a,recall system. However, the Board found that the grievors understood Mr. Hosfield to have indicated that the normal expectation was to respond within half an hour to a call (see p. 23 of award). This L is not an “immediate” response. . 8. Finally, it is not the “nature of the precipitating incident which determines the appropriate fate payable”, (i.e. stand- by or on-call). Rather, it is the actual duty the grievor is instructed to perform by Management in accordance with the normal activities associated with his regular on-call duty, which determines the appropriate rate payable; and this obtains regardless of whether the duty actually performed involves activity associated with an extreme emergency, or just a regular, troublesome situation which needs to be re- solved. In effect, it is Management’s discretion as to whether the duty to be performed shall be either ~“stand-by”, or “on-call”. In conclusion, this Member finds that the Ministry arranged its workforce in this case quite pragmatically and reason- ably. ‘The Ministry knows that problems will arise during hours when employees are not at work. Hence, on a rotation- al basis employees are scheduled to be “on-call” to attend to whatever problem situations might arise during off-shift hours. As in all recall to work situations, the Ministry wants and expects employees to handle these matters as rapidly as possible. Employees are placed on “on-call” status to handle these matters; and the designation of this status is at Management’s discretion. This arrangement nor- mally handles off-shift work situations as they arise as was quite clear from the evidence presented in this case. . As stated in the award, some matters are serious emergencies and the Ministry probably would have placed employees on a “stand-by” basis had it been possible to predict when a serious emergency might occur. However, emergencies are not predictable; and the duty system established is one which management determined would deal with the majority of matters that could arise. The designation of,the appropriate duty system is at the discretion of Management. f 9. i In the absence of pre-knowledge of when an emergency might occur therefore, employees are placed on “on-call” duty status. They are expected to be “reasonably available”; and are expected to respond reasonably promptly owing to the very nature of circumstances which give rise to call-in duties. This Member would have dismissed this grievance.