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HomeMy WebLinkAbout1982-0417.Walker and Taylor.82-11-10417182 418/82 Before: J.W. Samuels S.R. Hennessy N.J. Cazzola Vice Chairman Member Member Foi- the Grievor: M. Pratt Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: N. Robinson Staff Relations Officer Civil Service Commission Zearin : IN THE MATTER OF AN ARBITRATION Under THE CRO\qN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRPEVANCE SETTLEMENT BOARD Between: OPSEU (P. Walker and Wayne Taylor) Grievors - And - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer October 28. 1982 I -2- I .TABLE OF CONTENTS Introduction . History of the Jurisprudence Conclusions . . . . . Matter . . . . . . . . . . . . . . . . . . . . . . . . . . .......... ........ .................. .................. 1 2 9 11 - 3 - Introduction The grievors are.Motor Vehicle Operators, employed in the Transport Branch of the Ontario Provincial Police, which comes under the Ministry of then Solicitor General. .For several months during the summer of 1982, they participated in a rotational “pager schedule”, carrying a pager on weekends and standing ready to drive a Command Trailer if an emergency arose. .A3 of July 20, they were paid 254 per hour while carrying the pager, pursuantto Article 16 of the Collective Agreement, which provides for such, remuneration when an employee is “on-call”. 16.1 “On-call duty” means a period of time that is not a.regular working period, overtime period, stand-by period, or call-back period, during which an employee is required to be reasonably available for recall to work. _. -. (Emphasis added) The grievors argue that they were not “on-call”, but rather on ~lstand-by~~, which is defined in Article 15. 15.1 “Stand-by time" means a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work.(Emphasis added) For “stand-by”, the remuneration is as follows: 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 houra in his normal work day, he shall receive payment of one-third (l/3) of the stand-by hours at one and one-half (l-1/2) times his basic hourly rate. . . 2, F -4- I In this award, we shall determine whether the grievors were improperly paid for the period involved, and we will reserve our jurisdiction to determine the matter of compensation, if any, if the parties are unable to agree on this themselves. History of the Matter For some period of time, the OPP have had several 45-foot trailers. These trailers a,re under the control of the Transport Branch, and are driven from place to place by Motor Vehicle Operators employed in the Branch. There appear to be two uses for the trailers. Either they are filled with displays and taken to fairs and other gatherings to show the public the.work of the Force, or.they are filled with tables, chairs, telephones, telex equipment, and the like, and taken to places where the trailer serves as a Command unit. In the former use, the trailer is in the service of the Community Services Branch of.the OPP. In the latter use, the trailer is in the service of the officers on duty. As a Command Trailer, these rigs have been employed in a variety of scheduled operations (eg. the annual plowing matches), and, in the last ten or twelve years, in three emergency situations-- an aircraft disaster in Toronto, the Mississauga train derailment, and the recent Orillia train derailment. When the trailer was used at these emergency sites, it was not called in immediately. OPP officers joined other emergency units for some time before they Ealled in the Command Trailer. - 5 - On Sunday, February 28, 1982, around 11 AM, after the train derailment in Orillia, Mr. P. Walker was called at his home by Mr. K. Briggs, second in command to the Superintendent of the Transport Branch, and was asked if he could come “right away” to drive the Command Trailer to the site of the emergency. He said that he could, and was at the garage in minutes. The trailer was filled~with displays, and Mr. Walker had to lend a hand to unload it and get it ready for command. This took about one to one and a half hours. Then Mr.pWalker checked the tractor, and found a problem with the lights. He.had this fixed. He did not reach Orillia until around 5 PM., The trailer was situated on’s spot designated by the officer in charge. Then Mr. Walker discovered a problem with the generating system, and this had to be solved. On the site, the Command Trailer was manned by police officers. While Mr. Walker.was on the site, the Trailer was visited by the Solicitor General and the OPP Commissioner.’ Commissioner Erskine enquireh of Mr. Walker whenhe left Toronto with the Command Trailer and why the generating system was not functioning properly. Mr. Walker gave the Commissioner details of his-leaving Toronto,- and said he didn’t know why the generating system had malfunctioned. Upon his return from Orillia, Mr. Walker was asked by Superintendent Kotwa, OPP Director of Transport, about the response time.. Mr. Walker told him when he got the.cal’l,.when he got to the garage, the time it took to remove the displays, and the arrival time in Orillia. On. Monday, March I, Mr. Taylor was in Peterborough with a car carrier. He was-asked to return to Toronto and to take the -6- 7, . second Command Trailer to Orillia that night. When he reached the garage, the trailer was ready for him. He hooked up the tractor immediately, took the money waiting for him for expenses and.drove to Orillia. At this ‘point, we should establish the use of the Command Trailer. The only witness for the Employer, Mr. E. Makarow, Manager of Administrative Services for the Director of the Transport Branch, testified that the trailer was a “comfort station”, providing heat or air-conditioning for the officers on. site. Mr. Makarow is not a police officer, and has never been. to an emergency site. This descriptionof its use is totally inconsistent with the contents of the trailer. It has six phones, telex equipment, desks, chairs, and the like. Cne would have expected less functional material _ m a “comfort station” --perhaps a television set, or a couch. Clearly, when brought to an emergency site, the Command Trailer serves as the command headquarters, providing vital communications facilities. At Orillia, one~night Mr. Taylor, who had replaced Walker at the site, went to his motel for supper, and was called.. to return immediately because the power was off in the trailer. He did not even sit down to his supper, but returned as requested to sort out the problem. Such a response would hardly be necessary if the trailer was merely a “comfort station”. Given the evidence before us at the hearing, we must conclude that the Command Trailer serves an important operational purpose once on the site of the emergency. -7- Following the Orillia experience, there was a change in the deployment of the trailers. Now, one was always ready as a Command Trailer, with a truck attached. It may not be in Toronto, but wherever it was in the province, it was always ready as a Command Trailer. And a new “pager schedule” was introduced by the following memorandum to the Motor Vehicle Operators capable of driving the trailers: June 24, 1982 Re: Pager Schedule for ? On-Call Duty for OPP Command Trailer Commencing June 26, 1982, one of our drivers must be on call at all times to operate our Command Trai.ler if an emergency arises. Each of you is qualified to operate the unit and shall rotate on weekends and statutory holidays as your normal schedules allow. Because of vacations, work schedules, etc. it has been necessary to set the schedule up as per attached memorandum. You shall.be on call from 4:00 p.m. Friday to 8:00 a.m. ,Monday. During a normal weekend you will receive .254 per hour for 64 hours for a total of $16.00. The pager allows you freedom to carry on with your normal activities in the city. While on‘caI1 we ask that you be prepared to leave to operate the Command Trailer at a moments notice. Mr. Blonski can explain the use of the pager to the other drivers. The pager is to be left with the Manager, Lakeshore Garage on Monday morning and shall be picked up for use by the employee next in line whenever practical during the week. If a personal emergency arises and you cannot be on call, please contact one of the other drivers so that the pager can be transferred. E.W. Makarow Manager‘ Admihistrati.ve Services for Director, Transport Branch (Emphasis added) The grievors read this to mean that they must be ready to respond to an emergency immediately. While ‘the memorandum characterized the duty as “on-call”, in fact it was taken to be “stand-by”. When they were paid as if it was “on;call”, on July 20, they filed their grievances, claiming payment for “stand-by”. On the same day, Mr. Makarow returned from his holidays, received the grievances, realized that the grievors understood ‘the duty as “stand-by”, and issurd the following memorandum: This is submitted further to my memorandum dated June 24, 1982 advising that commencing June 26, 1982 one of our drivers is to be on-call to operate our Command Trailer if an emergency arises. Each of you is qualified to operate the Command Trailer and shall be afforded the opportunity to.’ rotate~on weekends and statutory holidays as your normal schedules permit. The on-call period is from 4:00 p.m~. Friday to 8:GO a.m. Monday on normal.weekends and at similar times for long weekends or statutory holidays. In accordance with Article.16 of the Collective Agreement, you will receive .256 per hour for all .hours on on-call duty. The pager allows you freedom to carry on with your normal activities in the city. While on-call, we ask that you be reasonably available for recall to work. The pager is to be left with the Manager, Lakeshore Garage on Monday morning and shall be picked up for use’by the employee next in line whenever practical during the week. If a personal emergency arises and you cannot be on-call, please contact ones of the other drivers or your supervisor so that the pager can be transferred: (Emphasis added) . -9- . Mr. Makarow testified that he gave the memorandum personally to each driver and explained the nature of the duty. He said that he told the drivers that, if they were out shopping when the pager sounded, they were to phone in right away; but could then complete the shopping, take their groceries and spouses home, change clothes and then make their way to the trailer. pr, if they were in church, they could await the end of the service.’ Or, if visiting friends in Pickering, they could return home to Mississauga, change c clothes and then report for duty. Both grievers testified that they never received such.verbal clarification. At our hearing, the Chairman asked Mr. Makarow what was expected of the driver if he was shopping when the-pager sounded, and upon phoning the duty officer he was told that a major disaster had occurred and the Command Trailer was needed immediately. Could the driver say: rlI1’m expected to. be reasonably available, and I’ll just finish the shopping, take home the groceries and the wife, and then be right over”? After several attempts at an answer, Mr. Makarow said that her expected the driver would respond immediately. No other answer would make any sense! -It is important to make clear that Mr. Makarow wasasked to set up the “pager schedule”. He was not the grievers’ super- visor. And If the pager sounded, the grievors were to report.to the duty officer. He would give them their orders. There was no evidence from the Employer concerning the nature of the orders t,o be expected. Mr. Makarow made it clear that he didn’t know about the operational orders, nor did he know whether or not a driver - 10 - could refuse to follow an order from a duty officer in these cir- cumstances. 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 major air . disaster, or some other like situation. One can see. the Solicitor General in the Legis~lature, when asked by the Leader of the Oppo- sition about the failure of the OPP to respond adequately to a disaster because the Command Trailer reached the site somewhat late, replying “The driver had to finish his shopping and get his groceries home,. ” Later,~on August 23, the grievers received th,e following I second stage reply’to their grievances: The question before me was whether you should be compensated forastand by time” as defined by Article 15.1 or “on call duty’ as defined by Article 16.1 during the week-end of July 17-18, 1982 when you were scheduled to take the duty in question. The intent of the activity was apparently to be .on call and a pager was provided to allow you flexibility in carrying out the assignment. The instruction, dated June 24, however, stated “Uhile on call we ask that you be prepared to leave to operate the Command Trailer at a momentls notice. II The words “at a moment’s notice”wereinterpreted by you to mean that you must~be immediately available. This gave you grounds to conclude that you were in fact on standby and entitled to greater remuneration than that quoted in the same correspondence. In that context, my decision is that you are entitled to compensation as defined in Article 15.4 foP the period of time the June 24th memor- andum was in-effect and you were assigned the duties in question. A.N. Chaddock, Chief Superintendent . I . - 11 - i a So they were paid for lqstand-by” for service between the memorandum of June 24, and the one of July 20. The grievers continued to consider themselves ready to. respond immediately, and~the Ministry treated the duty as “on-call”, paying the grievers 256 per hour while on the pager. .::,:. ,.... . . The whole system was abandoned on October 3. There had been no calls on the pager to,:any of the drivers. Management decided that there was no need to have drivers at the ready to take the Command Trailer to an emergency. Henceforth, if an emergency arises on a weekend, and the trailer is needed, the Transport Branch will. have to phone around to see if someone is- available. It is interesting to note that Mr; Walker did not know ‘. that the system had ended, when his rotational weekend came up in mid-October. He had not received a schedule for that period, but he assumed he was to be on duty and went to get the pager. The office was locked when he got there, so he just stayed at home ready for the weekend. Jurisorudence This Board has dealt several times with the,distinction between “stand-by” and “on-call”. It would be useful to review this jurisprudence. In Jamii?son et al, 162177, the grievers were plumbers and electricians at the Ruronia Regional Centre and participated - 12 - in a recall system established by their direct supervisor. It was held that the employees were “on-call” because the response time could be two hours, or up to three and one half hours if advance notice is given of the employee’s location and unavailability. The system was very flexible. If paged, the grievers had to’reply to the Centre’s switchboard. -It is signifihant that the nature of the duty was explained clearly to the employees by their supervisor himself. In Cloutier et al, 128177, the grievers were Mechanics in an establishment of the Ministry of Transportation and Communi- cations. The award is brief and few facts are given. However, the Board.does comment on the need for an Employer to be precise in its instructions concerning the duties involved. /It was held _ that the Union had not proved its case that “stand-by” was involved. In Appelle, 147/78, hea.rd on the same day as Cloutier, the grievor was a Maintenance Mechanic at the Sudbury Water Pollution Control Plant. Here, there was no evidence whatsoever of instructions to the grievor concerning the nature of his duties. He had been told he was “on-call”, but no one had explained what this meant. In writing, he was told to respond “as quickly as possible”. The Board decided that the grievor was actually on “stand-by”, and was to be paid accordingly. In Novak and Humphrey, 141/81, the grievers were Resource Technicians with the Ministry of Natural Resources. Primarily, they i - 13 - ,: i acted as conservation officers, and were trained in enforcement of provincial conservation legislation. They would deal with injured animals, fires and floods. The Board held that their pager system was an “on-call” system, rather than “stand-byl’, because they did not have to wait at home near the telephone “ready-to-go”. However, the Board did give an example of such a “ready-to-go” situation---a fire crew on alert during a fire emergency. If they had to report, the grievors here would report to someone of their own status, who happened to be the duty officer at the time. While each of these cases turned on its own facts, there are some general conclusions which can be, drawn from the.juris- prudence. Firstly ,’ thematteris 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. Conclusions In our case, what are the salient points? Firstly, the Ministry characterized the situation as “on-call”, and made it clear to the employees that they were to be paid on this basis. Secondly, the system was established “if an emergency arises”, and it would have been known that the only emergency use of the Command Trailer previously was a majo,r air disaster, the Mississauga . train derai ich lment, and the Orillia train derailment---all of wh involved high danger, and a matter of life and death for many members of the general public. So it would be reasonable for - 14 - any employee to conclude that he was asked to be ready to respond to that kind of emergency. He would know that the possibility of this was remote, but the OPP had now reserved a trailer and. tractor for immediate use as a Command Trailer. Thirdly, the instructions accompanying the memorandum, if given at all, were either >xnclear or made little sense. As we’ve already indicated, a driver simply couldn’t respond to a Duty dfficer, who was asking him to come immediately, that he had to finish his shopping and get his wife home with the groceries. While the memorandum came from.Mr. Makarow, the orders would come from the Duty Officer. This is critical in our view. The Ministry never made clear what _ was expected of the grievors in face of an order from the Duty Officer. In sum, given their knowledge about the use of the Command Trailer at the Orillia site, it was manifestly reasonable for the grievers to conclude that the pager system was designed to enable them to respond immediately both to the call and to the order t’o bring the trailer. While the trailer may not be required immediately upon the occurrence of the disaster, once it was required, it should be there as quickly as possible. It is justnotreasonable to expect that one could finish the shopping or listen to the sermon while the deadly gas swarmed over the city and the officers on duty awaited the arrival of their vital communications system. ‘,. 4 - 15 - For these reasons, the grievances are allowed. The grievors shall be compensated for time served under the.published pager schedules as if they were oh “stand-by”. We reserve our juris- diction to decide the matter of compensation if the parties are le to agree on this. unab Done at London, Ontario, this /et day of 1982. />\ S. Hennessy, Member 8: 3700 4: 2000 . i. - 16 - LIST OF EXHIBITS 1. 2. 3. 4. 5. 6. 7. a. 9. Walker Grievance Form Taylor Grievance Form Collective Agreement Reply to Walker. Reply to Taylor Letter of June 24 re “Pager Schedule” Pager Schedule of June 24, 1982 e, June 25, 1982 i Letter of July 20 re “Pager Schedule” Memorandum of July 27 re “Pager Schedule” First stage,reply ,- Walker Idem - Taylor 10. 11. .12.