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HomeMy WebLinkAbout1986-2002.Bouillon et al.90-07-13E.MPLOYESDEL4 COURONNE DE “ONIARIO CPMMISSION DE am BOARD DESGRIEFS SETTLEMENT REGLEMENT 2002/86 IN THE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN: BEFORE: ' FOR THE GRIEVOR: FOR TEE EMPLOYER: BEARING: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Bouillon.& al) Grievor - and - c The Crown in Right of Ontario (flinistry of the Environment) - and - Employe,r B. Fisher Vice-Chairperson I. Thomson Member F. Collict Member I. Roland Counsel Gowling, Strathy & Henderson Barristers '& Solicitors R. Younger Staff Relations Advisor Staff Relations and Safety Ministry of the Environment January 10, 1990 April 17, 1990 ,April 18, 1990 This case involves that age old debate between whether the grievors are entitled to Standby-time pursuant to Article 15 or On-Calls Duty pursuant to Article 16. The parties agreed that the Board would hear the grievance of Tim Setterington and that this decision would be binding on two other grievors, Dick Waggett and Ivor Johnson. It was also agreed that this panel of the Board~would remain seized of the other ten grievances filed under this number, but that they are not bound by the outcome of this decision. The grievor is employed as an Instrument Technician at the Union Water Treatment Plant. His job entails looking after electronic, electrical and pneumatic equipment at this water and sewage treatment facility. He works a rotating on-call commencing at 4:30 p.m. to 8:00 a,m., Monday to Friday, and all weekend. It is not necessary to go through the extensive evidence led by both parties as to whether.or not the grievor,is expected to respond immediately to the calls or simply be reasonably available insofar as the employer admits that for certain situationsthe grievor is expected to respond immediately. The policy on response times is clearly set out in a memo dated August 18, 1989, to the grievor and others from William Allsop, the Superintendent of the Union Water Plant. The memo states as follows: “As of August 18, 1989 ou will be canyingpager 1370 on your week of on-call, When an alann from t e Sewage Station comes throu h your ?r directb br by contact of the operator, you will respon i* if ager The operafor aIann is do included in the above. unme lately There are m whxh I lea&?& your~ujfment. fim and otherproblems that will rep? iour immediate response pager and can be reac e ifyou require assistance. ” wdl cany ty secondary The grievor testified that this memo was really nothing new in that it simply confirmed the pre-existing state of affairs which existed at the time of the filing of the grievance. -2- Mr. AIlsop, the Plant Superintendent, testified that the memo of August 18, 1989, marked a significant departure from past practice in that prior to that date a member of management would carry the:primary pager and the grievor would only be contacted by the supervisor if he thought it was necessary. After August 18, 1989, the primary pager would be worn by the grievors and consequently they would not know the nature of the alarm until they attended at the plant to view the problem. It was for this reason that management chose to raise the level of response for sewage alarms to requiring an immediate response. It should be noted that even prior to August 18, 1989, the grievor would also receive certain calls directly from the plant operator and/or the answering service. Therefore, the significance of the change is that now all the calls would come from these two sources and no calls would come through the supervisor. The policy of the employer has been to first pay the grievors on-call pay and then if and only if an actual emergency requiring an immediate response occurs on a shift does the employer retrospectively pay the grievor the stand-by rate for the entire shift during which the emergency occurred. The grievor kept track of the number of times that he was required to respond immediately while on call. Over a three year period, the grievor worked 224 days on- .~ call, and he was called in approximately 12.5 times. In other words, the grievor could be expected to respond about 5% of the days he is on call. According to the employer’s records about l/3 of the times the grievor is called out while on call he is retrospectively compensated at the stand-by rates. In other words about l/3 of the call-ins while the grievor is on-call constitute emergencies.requiring an immediate response. . . ~. -3- The Union’s evidence is somewhat different in that they allege that approximately l/2 of the call ins while on-call require immediate response. In any event, the evidence seems to disclose that the grievor can be expected to respond immediately about 2% - 3% of the days he is on-call. It is not necessary therefore to decide as to the degree of readiness that is expected of the grievor while he is on call as the expectation of the employer is clearly set out in the August 18, 1989, memo. The grievor is expected to respond immediately to certain types of calls, which make up about l/3 to l/2 of the total calls he responds to. The trouble, of course, is that the grievor does not know in advance whether’ or not on any given on-call shift he will either: t a) not have to respond at all (95% of the time); b) respond but not immediately (2% - 3% of the time); c) respond immediately (2% - 3% of thetime) The only way to insure that the grievor can properly respond immediately is for him to keep himself in a constant state of immediate readiness so that he can be reached immediately and respond immediately upon being reached. This the grievor in fact did. What then is the proper way to compensate the employee for this constant state of readiness but relatively rare occurrence of an actual emergency. Arbitrator Emrich in Iarldn 941/83 decided that the retrospective approach adopted by the employer in this case was the proper one so that the grievor is placed on standby after the fact, in other words, after the emergency has taken place. Although this apgroach has an interesting appeal in that hindsight is 20/20, it strikes this Board that what the La&In decision is”really doing is extending the call-back provisions of Article 14 by in effect increasing the amount of pay an employee receives when he actually works. However, the purpose of Article l> and 16 is not to pay persons for ““‘~P*‘Tworking, rather the purpose is to pay people for being ready to work. It is to -4- compensate an employee for having to restrict his off-duty activity to some degree, and depending on the degree of such restriction, it is either called on-calls or stand-by and paid ~~ accordingly. Why then pay two employees different rates when they both act in the same way? .~Applying the Larkin principle, assume two employees, Mr. A and Ms. B, are both out at a baseball game. Both Mr. A and Ms. B work for the same Ministry, and both are on-call. In the first hour of their on-call stams,.Ms. B gets a pager call requiring her to respond immediately to an emergency. Mr. A’s pager does not go off that night. Applying Larkhr, Mr. A would get .25c per hour for an eight hour shift ($2.00, not even enough for a beer at the ballpark) and Ms. B would get four. hours of her regular rate plus of course her regular rate for the hours that she worked. In the opinion of this Board, this remedy is neither consistent with the purpose behind on-call and standby rates nor is it.consistent with the language of the Collective Agreement. This Board therefore declines to follow the Larkin case. In the recent case of Apferbeck et al (1464/86 Simmons), the Board dealt with grievors in a similar situation to the grievors in this case. In that case Arbitrator Simmons found on the evidence that the expectation of the parties as to expected response times depended to some degree on the time of day. He found that a peak time for water use was 4:30 p.m. to 8:30 p.m. and that a disproportionately high number of emergency calls occurred during these hours. He therefore found that the response expectation was higher during those hours than at other times and therefore declared that the hours of 4:30~p.m. to 8:30 p.m. on Monday to Friday were to be paid as standby and all other times as on-call. This approach strikes the Board as a reaumable one, where the evidence presented shows a different level of expected response based on the time of day or week. .1;... -5- However, in this case no such evidence was presented. A review of the times in which the grievor did respond shows no set pattern, in fact, if anything, more of his responses were outside the hours of 4:30 p.m. to 8:30 p.m., Monday to Friday than within that time frame. There was some evidence regarding seasonal peaks tied not only to residents’ lawn care requirements but also the importance of a steady water supply to the local Heinz plant during.the canning season. There may well be different expectations of response based on times of the day or year but this employer has not made those distinctions in the memo of August 18, 1989, and therefore we are compelled to conclude that for all of the time that the grievor was paid on-call he should in fact have been paid as standby. This grievance therefore succeeds and the grievor is to be compensated as being on standby for all hours in which he was previously compensated as being on-call, commencing 20 days prior to the filing of the grievance, but this compensation is to be without interest up to the date of this award, but from that point on the award is to bear interest at’the rate of 12% per annum. This Board will remain seized with respect to the implementation of this award or the calculation of the monies owing. Dated at Toronto this 13th day of Julyl990. ADDENDUM Bouillon et al - GSB. #2002/86 This Member is in agreement with the award in this case. In the interests of further clarification of this line of cases, perhaps the followi.ng may be of assistance to the parties. Generally, the issue ‘begins as follows: As stated in Jamieson (G.S.B. #162/77), at pages 9 and 10, . ..~~ . . . 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 oossible after the emergency or trouble arises; that is the very nature of a recall system. .~ “... (underscoring added) Hence, the need for immediacy will always characterize, call-in situations, whether they are call back, call back while on stand-by duty, or call back while on on-call duty. Within this very “narrow band” of immediacy, Management has both the right and responsibility to schedule the duty assignment of employees to be “available for immediate recall to work” (stand-by, Article 15.1) “to be reasonably available _~ to recall to work” (on-call, Article 16.1), or to be called back to work (Article 14) in the event of a troublesome matter that requires attention. However, as stated at page 13 in Walker and Taylor - G.S.B. #I417/82, #418182, .*.. the matter is not decided simply on the language which the Employer uses. 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 very essence of their duty was, to operate a “Command” emergency communications vehicle which, ~-when called, always involved an emergency and required immediate response. That case is distinguishable from Larkin (G.S.B. #0941/86), Apfelback (G.S.B. #1464 to 1468/86), and the subject case inasmuch as call backs invariably were just .trouble calls, with periodic emergencies. Hence, the determinative factor relative to on-call vs stand-by status, is the written and/or verbal instructions given to the -employees. In this respect, this Member is in agreement with the award at page 4 with reference to retrospective payment,’ as follows: .~ In the opinion of this Board, ,this remedy (ie retrospective payment) is neither consistent with the purpose behind on-call and stand-by rates nor is it consistent with the language of the Collective Agreement. This Board therefore declines to follow the Larkin case. 3 With referenceto the subject case, what were the instructions to’the employees? As set out in the award at page 3, . . . the expectation of the employer is clearly set out in the August 18, 1989 memo (Ex. l).. The grievor is expected to respond immediately to certain types of calls, which make up about l/3 to l/2 of the total calls he responds to. . ..The only way to insure that the grievor can properly respond immediately is for him to keep himself in constant state of immediate readiness so that he can be reached immediately and respond immediately upon being reached. This, the grievor in fact did. (underscoring added) ‘-I... The grievor’s evidence was that response time was, to respond as soon as you were contacted. (page 12 of notes) . The evidence of Superintendant W. Allsop concerning the significance of the August 18, 1989 memo (Ex. 1) relative to on-call availability wasas follows: The significance there was that wee have had some problems with sewer backup in basements in Middlesex County and therefore, we required a response faster than - ‘as reasonably soon as possible.’ (p. 35 of notes) _- Additionally, Mr. Allsop stated that even if he abandoned the on-call/stand-by provisions and relied solely upon a call-in provision, he stated that he would - II . . . expect a quick response.” Grievor Setternigton agrees that Mr. allsop has never told him to be immediatelv available when on-call; and this confirms Mr. Allsop’s evidence. However, the August 18,. 1989 memo is clear to the effect that employees on-call are expected to. respond immediately to certain on-call situations; and the practice would appear to confirm that the grievor does respond immediately. In view of all of the above, this Member is in agreement with the award. Management has. the right to assign employees to on-call, stand-by, or to rely solely upon a call-in provision. To do. any one of these the instructions to employees must be verv clear, owing to the fact, . . . that any system of recall will necessarily involve an element of immediacy in the means of contact... (Jamieson - G.S.B. #162/77, at pages. 9, 10) To avoid this required precision instruction further clarification of the Collective -c-Agreement language associated with on-call and stand-by duty is required.