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Home My WebLink About1978-0147.Appelle.79-03-14147173 iN THE MATTER OF X4 ARBITRATION \ Under The CROXN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD , if ~Between: Mr. W. Appelle And Ministry of the Environment Before: Far the Gyievw Forthe Employer Professor &. S3m Vice-Chairman Mr. P. Coupey Member Mr. B. Switzman Member Mrs. L. Stevens, Grievance Officer 3ctario Public Service Employees union 1901 Yonge Street, Torcnto, Cn%rio Mr. W. Gorchinsky~ Senior Staff Relations Officer Staff Relations Branch Civil Service Conrnission 2nd Floor Frost.S., Queen's Park Hearing: September 2?th, 1978 Suite 2100 XC Dundas St. W. Toronto, Ontario I s. ,., i -2- This case was 'heard on the same day as, and in conjunction with, Re O.P.S.E.V. (ClOutier et al.) and'xinistry of Transportation and Communicati&, 128/x'. As we noted in that case, those grievances, although distinct from the present, also dealt with the provisions of the collective agreement relating to "call-back", "stand-by time", and "on-call~duty". The applicable provisions in force at the time of the present grievance (the 1978 Working Conditions Agreement), and materially identical to those in force for the cloutier et al. grievances, are as'follows: ARTICLB 14 - CALL BACK 14.1 An employee who leaves his place of work and is subsequently called back to work prior to the starting tim? of his next scheduled shift shall be paid a minimum of four (4) hours pay at one and one-half, (1;4) times his basic hourly rate. ARTICLE 15 - STAND-BY TIME 15;1 "Stand-by time" means a period of time that is not a regular -workJng period during which a. employee keeps himself available for immediate recall to work. 32.2 stad-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 circmstances 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 ar his basic hourly rate. -3- 15:4 Where an employee is required to stand-by for mre 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 (1%) times his basic hourly rate. ARTI&C 16 -ON-CAL&DUTY 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 t6 work. 16.2 On-call duty shall be approved prior to the time the employee is required to be cn call. 16.3 Where an employee is req&ed to be on call he shall receive twenty-five cents (2%) per hour for all hours such employee is assigned to on call duty. In the Cloutier award this panel of the Board indicated its con- currence with the principles expressed in previous decisions of other, panels of the Board, and particularly the observation in ne 0.P.S.E.U (Jamieson et al.) and Ministry of Community and Social Services, that each such case must be considered on its own facts, and that a decision in one workplace context may not be readilytransferable to another. We therefore turn to the evidence before us. The grievor was at the material time a Maintenance Mechanic at the Sudbury Water Pollution Control Plant. Only four persons are employed in this classification, and consequently the grievor was placed~on a station which the Employee asserts to be "on-call" . . ,-., I -4- within the meaning of Article 16 for one week out of every four. In~ addition, of course, the grievor works regular day-shift hours Monday to'Friday. The grievor, when "on-call"? is issued a pager provided by Bell Canada. The Water Pollution Control Plant is left unmanned during off-shift hours, but an alarm system monitors all critical functions. , In the event of a breakdown, an alarm is transmitted to the Wahnapitae Water Pumping Plant, which is manned on a twenty-four hour basis, or If to a commercial answering service. These agencies are responsible for contacting the "on-call" mechanic, and he is responsible for clearing the alarm and'performing the required maintenance operations. ,The question before us is whether the instructions given to the grievor constituted an order to be "available for imnediate recall to work", and thus on "stand-by time" (Article 15), or "reasonably available for recall to work", and thus on "on-call duty" (Article 16). In’the present case we have literally no evidence of oral consnunication to the grievor of what was expected of him in.respect of response to calls.~ The grievor says no one has told him what he must do to meet the requirements of his on-call status. The superintendent of the Plant gave evidence of the flexibility available to employees'"on-call", but was unable to confirm whether anyone had ever. discussed this flexibility with the grievor. Without more, this would be a case of a managerial vacuum, like the Cloutier et al. decision, in which individual.employees were simply left to -5- make their own interpretations of the collective agreement. In that situation, as this panel pointed out in the cloutier decision, the Employer bears a considerable risk of the consequences of damage and may well forfeit the right to rely on any but the loosest interpretation of "reasonable" in any disciplinary case which might arise. 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 wheri paged and informed of an alarm: 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.'... (emphasis added) 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 expresiion which more closely fits the "immediate" test of Article 75. Faced with such a conflict between his instructions and his pay for alerted status, he quite properly filed a grfevance. The day after his grievance was filed, he received a reply (Exhibit 4) which, afthough not particular]y satisfactory, at least clearly ~set out the "reasonable" test as applicable to his alerted status. There was not, therefore, a long period during which the grievor had asserted his . -6- grievance‘rights but had not been placed in a position of knowing that, like the grievors in the craftier et al. case, he was to rely on his own interpretation of the collective agreement. We find, however, that the Employer was $t least technically in breach of Article 15 and 16 of the collective agreement for the week of June 9-15, 1978, when the grievance was filed~and when the grievor was in fact on alerted status, had been given equivocal instructions more appropriate to "stand-by" than to "on-call" duty, and had recognized that his contractual rights were violated. In the circumtances, therefore, the grievor is entitled to be paid for the week of June 9-15, 1978 under Article 15 of the collective agreement for all hours during which he was expected to report to work "as quickly as possible" upon ,receipt of an alarm. We remain seized of-jurisdiction to calculate the amount, payable should the parties be unable to agree. Dated at Toronto this 14th day of March 1979. K. P. Swan Vice-Chairman I dissent (See attached) P. Coupey Member I 'concur B. Switzman Member \ __~~~ - 7 -~ DISSENT 147170 Mr. W; Appelle and Ministry of the Environment With respect, I am unable to agree with the majority Board Report. The issue in dispute, in its simplest form was whether the grievor was on "stand-by time" or "on-call duty" for the. period June 9 - 15, 1978. Apart from the form and amount of payment, the primary differentiation between stand-by and on-calllis that under Article 15 - Stand-by Time, an employee must make himself available for "immediate recall" (emphasis added) to work, whereas under Article 16 - On-Call Duty, an employee is required to be Veasonably available" (emphasis added) for recall to work. The testimony of the grievor indicated that when he was hired, he would be subject to being "on-call" one week per month; he would be contacted at home by telephone first and if he was not reached, that he would then be paged on the Bell Canada Pager; he was never told the response time, and.that there were no restrictions on the distance he could be from the plant while on-call duty.~ While the grievor had.been employed at the Sudbury Water Pollution. Control Plant since October 4, 1976, the on-call system had been in effect since 1964 without any complaint from the employees. It is interesting to note that Exhibit #1 is headed "On-Call Schedule- .~.. (emphasis added) for Sudbury W.P.C.P." and covers the period starting May-12, 1978 and for the next six months, which clearly indicated the periods of time that the grievor would be "on call"! *. Evidence was also provided that on two occasions the grievor had not responded30 calls, and that another mechanic took the calls. It is apparent that ~the grievor was not "immediately available" for recall to -a- work,.and this would lead us to believe that he left himself only , "reasonably available".for recall to work. The grievor claims in his grievance as follows: "I grieve the payment of on-call duty, Article 16, Section 16.bl of the Working Conditions Agreement in that I must answer to a pager and must be readily available in the event of an emergency". I would submit that the griever's phrase "readily available".is closerto "reasonably available" than it is to "inmediately available"! Although the,instructions in Exhibit 1 state "The person 'on-call' ,/' will have no acknowledgment except to get to the plant as quickly as ' possible and clear the'~alarm condition....", I cannot accept the conclusion that the requirement to report to the plant "as quickly as possible" is an expression which more closely fits the "immediate" test of Article 15 in view of the evidence and testimony provided at the hearing. It is apparent to me that the grievor,understood that he was "on- call" and had demonstrated the requirement to respond on a "reasonably available"'basis.as.cglled for under Article'16 and that he wasp, therefore, ;c. appropriately compensated. For the foregoing reasons, I cannot accept that the employer was "at least technically in breach of Articles 15 and 16" of the Collective Agree- ment, and therefore would have dismissed the grievance. Respectfully submitted, (Signed) P. H. Coupey ',-