GSB#2016-1407; 2016-1408; 2016-1409

UNION# 2016-0356-0001; 2016-0356-0002; 2016-0356-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brethour et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 11 and May 15, 2018

Decision

1Mr. Glen Brethour, Mr. Jeremy Dynes and Mr. Luke Hillyer are employed at the Ministry District Office in Bancroft, Ontario. They have filed identically worded grievances dated August 15, 2016. These came before me pursuant to article 22.16 of the collective agreement. The parties agreed that evidence of representative grievors would apply to all three grievances.

2The employer has established a “Bear Wise Protocol”, (“Protocol”) setting out the procedure for Ministry response to incidents of human-bear conflict. The protocol requires the grievors to be available to respond to wild bear situations after hours and on weekends. The employer compensates the grievors for hours they make themselves available at the “on call” rate of $ 1.40 an hour under article UN 11. The grievors claim that they are entitled to the higher “stand by” rate under article UN 10 of the collective agreement.

3The relevant collective agreement provisions are as follows:

UN 10.1 “Stand By Time” means a period of time that is not a regular working period during which an employee is required to keep himself or herself:

(a) immediately available to receive a call to return to work, and

(b) immediately available to return to the workplace.

UN 11.1 “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 respond within a reasonable time to a request for:

(a) recall to the work place, or

(b) the performance of other work as required.

4The parties agreed that the disposition of these grievances would turn on the facts on the state of readiness required of the grievors. The readiness expected of the employees is set out in “The bear-wise protocol” (“the protocol”) a document established by the employer. It provides that, “On call employees have 30 minutes to respond to a call”, and that, “Following that, they have 2 hours to get to the office/be ready to respond. (e.g. have truck and equipment ready, etc.)” The dispute in the instant grievance is whether these expected response times are consistent with the “within a reasonable time” requirement in the “on-call” provision as the employer asserts, or whether it imposes on employees an obligation to be “immediately available” to receive a call and to be “immediately available to return to the workplace” as contemplated by the “Stand-by” provision.

5The employer and the Ontario Provincial Police are signatories to a “Memorandum of Understanding for Bear Management”, which sets out the responsibilities for both parties. For each “bear season” (June to September), the employer establishes a protocol setting out its process for responding to problem bear calls from the OPP, seeking Ministry assistance. The grievances relate to the 2016 and 2017 bear seasons.

6Under the protocol the grievors have 30 minutes to respond to a call and following that they have 2 hours to get to the office and be ready to respond. The thrust of the union’s case is that the grievors are required to perform a number of tasks in the allotted two hours to be ready to respond. To be able to do that, they have to be “immediately available to return to the workplace” upon receiving a call.

7The Board notes that stand-by pay, or for that matter on-call pay, is meant to compensate employees for the time they make themselves available during off hours to receive a call to respond to bear situation. Entitlement to stand-by pay is not, therefore, dependent on what they may or may not do following the receipt of a call and acting on it. For that time they get compensation under other provisions of the collective agreement.

8I note also that, in determining entitlement to stand-by pay, how the employer elects to label the time in question - as stand by or on-call - is not relevant. Nor is it relevant that a grievor in fact makes himself “immediately available’ to return to the workplace, when not required to do so by the employer.

9The employer’s expectations and directions are that contained in the protocol. There is no evidence that anything was communicated to the grievors, verbally or in writing, that would vary or amend those in any way.

10Significant time was spent reviewing the MOU with the OPP, and the extent of the employer’s responsibility for public safety under it. However, that is irrelevant for determination of these grievances. If the afterhours bear wise protocol instituted by the employer is inadequate, and fails to comply with the employer’s obligations under the MOU, there may be consequences for the employer. However, it has no bearing on whether the protocol gives rise to stand-by or on-call pay under the collective agreement. As the Board has observed “The issue for the Board is the employer’s actual expectations, and not whether that expectation was adequate to provide an efficient service”. (See, Re OPSEU and Ministry of Environment and Energy, 120/95 (Dissanayake) at p. 33 and authorities cited therein).

11Mr. Brethour, like Mr. Dynes, is employed as Resource Management Technician. He testified in chief that he understood that when he receives a call from the supervisor to respond to a bear situation he was expected to “stop everything, get what I need and head out to the office”. Union counsel asked why he felt that way when the protocol allows 30 minutes to respond to the call and a further 2 hours to be ready with the truck and other needed equipment. Mr. Brethour replied, “I know that I am called out to a situation where there will be public safety issues. So it makes sense. I won’t hang around although I know the police is already there”. He testified that he considered bear calls to be of “high importance” because of the potential risk to the public from wild bears. He testified that he had not been told by management what would happen if he did not comply with the timeliness in the protocol, but presumed that he would be disciplined.

12Mr. Brethour had not