The URL can be used to link to this page

Home My WebLink About1977-0128.Cloutier et al.79-03-14IN THE MATTEP, OF AN ARBITRATION Under The CROWN EMPLOYEES CDLLECTIVE BARGAINING ACT Before Between: THE GRIEW!Ci SETTLEKENT BOARD Inessrs. Cioatier, 'ilroblewski (Griever) and Larose and The F"iinist;-y of Transpo!-tation and Comnsnications (Emo~oyer~ Before: Professor K. Swan Vice-Chairman Mr. P. Coupey &pber Mr:3. Switzman 3estber For the Grievcc ~Mrs. Lillian S~evef?s, Grievacz Officer Ontario Public Serlrice Employees Unicn Fcrthe Eneloyer -. Wr. W. Eorchinsky, Senior Staff Relations Staff kiations Yranch Offi~~p_l- Civil Service Cowission tiearing: Suite 210G, 1BO Gundas St. West Torontc, Gntario September 29, 15B This case was heard on the sam day as, and in conjunction with, I<? O.P.S.E.U. (Apprlle) af:d Elizistrq of the Zavironment, 147/70. Although they are separate fact situations sod b:ere heard separately, both cases are aimed at a clarification of the provisions of the l collective agreermt relating to "call back", "stand-by time" and ., "on-call duty". The applicable provisions of the collective agreement in force at the time of the present grievances (the 1977 Uorking Condi- tions Agreeme, It). which wra materially the same for the Appelle grievance, v;ere as fo11ov.s: MTICLE 14 - CALL B.XK 14.1 AR employee who leaves his pl+e of vork and is subsequently celled b;?ck to work prior to the starting tic2 of his next scheduled shift shal.! 2~ pa.id a winimn of four (4) hours pay at tint and c.?c-half (2.%) his basic hoxly rate. ‘WTICLE 15 - STAND-BY TiKt 15.1 "Stand-by tin?" mzr!s rl period of tine that is not a requlz vorkirq .zez!od during which 15.2 Stz.?d-by tic!= sh;lll be approved, in writing, by the Dezxty Kinister or his representative and such ilpproval shzll. be riven p--ior to th& time the e~!ployee is required to stand-by, except in circumstmces beyond the Er;loyer's control. 15.3 Where an errployee is required to stand-by for not mm thzn the number of hours in his normal work day, he six11 receive four (4) hours pay at his basic hourly rate. 15.4 Vhere an enployee is required to'stand-by for rare than the number of hours in his normal work day, he shall receive pnyment of one-third (1/3rd) of the stand-by hours et one and one-half (l-4) times his basic hourly rate. ._ ( ’ . -3- >< P6 " ARTICLE 16 - ON-CALL'DUT" 16.1 "On&~all duty" m?ans a period Of.time that is not a regirlar xorkinq period, overtime period, stand-by perio?; or call back period, during which an employee is required to be rea?onebly available for recall to work. > I 16.2 On-call duty shall be approved prior \ to the time the em2Qoyee is required to be.on call. 16.3 Pihere an employee is required to be on call he shall rcceiz twenty-five' cents (25C) per hour for all ho!xs such employee. is assigned to on-call duty. The evidence reveals that the grievors :';ere all.employed in the classification of Mechanic 2 at the Ministry's establishment at McFarlane Lake inSudbury. -On or about December 9, 1976 a decision was.taken to move from a system of calling around among all of the mechanics to find someone willing.to be called back to deal with~a break- do?:n'during off-duty hours to a system inwhich a mechanic would be identified, according to a schedule prepared in advance, Asian "on-call duty". There was some conflict of interest as to just how this new system was implemented, but we are prepared to accept that neither the union nor the individual employees were in any way involved in the decision to implement it nor in any meaningful decisions about how it would be implemented. Nevertheless; the fact that the "on-call duty" is specified in the colle~ctive agreement and that a pay rate is specified clearly ~justifies the use of such a status if its imposition is otherwise unexcep- tional. The Union asserts that the kind of duty here imposed is actually "stand-by time", and is therefore payable at a much higher rate. This is clearly entirely an issue of fact, and,we shall proceed to a discussion of the evidence and a determination of the dispute on that basis. j I I .j -4- Before doing so, howver, K;S? note that this Board has deal,t with this issue before. In Re O.P.S.E.U. (Janic?son ct al.) and Kinktry of Con- - mJn,ity and Soci;ll Ser'.,,icys, 16i!/77, and in HC O.P.S.E.U. (.rem%.~ ct al.) __I ar.d c!inistry of Ccm::mit~ .m3 Social %xvices, l/78, pan:ls Of th? Board differently constituted hzve reviewed specific instances of the applica-'% tion of "on-call duty" provisions and have held, albeit reluctantly, that the provisions have been properly applied. As the Board said in the JE:SOJI case, however: In our vie:g, each ca.se of this kir!d will require a jndTre:ont base2 on a consideration of all the relcvmt circumstances cxd in recognition of the, fact that. the parties hare created the two scparatc statuses. The particular arrengmsnts will vary from workplace to workplace and a d,acision in on-0 settil?g may not be readily transferable to nnoth-or. The only real matter of principle to be decided is b:hether, on all the.evidence, the instructions given to the employees constituted a direction to be "ava:lab?n for imzdiate recdi to WOI;Y or a direction to be "reasonabiy avd:aXc for recall to work". It is not our function to discuss the relative social consequences which flow from these two contractual formulae, nor to question whether the pay allotted is appro- priate or not. The parties have chosen to include both the contractual language and the rates in their agreement, and they are therefore equally binding on the parties, on the employees and on us. The onus in a case such as this is on the Union, and we must therefore be satisfied on the usual preponderance of evidence that the Union's case has been made out. In this case, we are not so satisfied. There r:as no written evidence of any employer direction as to the precise nature of the status of the employees, but it is clear that, from the boginning, they knew that the Employer was relying on the "on-call duty" L provisions of the agreement. There is no evidence that instructions wre .x; _dgiv& to the employees to contradict the "reasunably av~ilablc" require- ment of tha collective agreement; indeed, what evidence there is of.~any instructions at all is to the contrary. The only specific instructions 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 2 I \ element of being "reasonably avai2ab.w. The only disciplinary action ever taken appears to have been a verbal. caution to Nr. Wroblewski, who once left home for a substantial period without leaving a number where he could be reached. In our view of the evidence, the Union has failed to make out a case that the Employer gave these grievors any instructions which contravened Article 16 or &ich would involve Article 15. On the evi- I dence, it appears that the Employer's representatives simply left the grievors to obey the collective~agreement. This cannot, of course, constitute abreach of that agreement, but like the other panels of this Board which have dealt Gth this issue, we are uneasy at a manage- ment style which leaves critical contractual interpretation issues to individual employees and does not even attempt to explain what is expected of them. It may be appropriate to issue a warning that the Employer may well run the risk of expensive and possibly dangerous delays by adopting such an approach, and that the Employer's right to rely on the provisions of Article 16 in disciplinary case; may.be considerably affected by such a clear failure to manage. ...I... . . _.,.... “.--” . . . -.-.” . ..__ I ._.,...-_...a. -w-.1 -: : t. - 6 - On the evidence before us, ho:~/evct-, the present grievances xst ?e dismissed. kted at Toronto this 14th day of March 1979. K. Swan Vice-Chairman I concur C’ P. coup,?y Itember I concur B. Switzman Member