[1991] OLRB Rep. July 832
0938-91-G International Brotherhood of Electrical Workers, Local Union 1788, Applicant v. Electrical Power Systems Construction Association and Ontario Hydro, Respondents
BEFORE: Paula Knopf, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Brian J. Scott, Harold Bartlett and Robert Thoms for the applicant; Guy W. Giorno, Vello W. Medri, Barry Roberts and Lavern Shillington for the respondents.
DECISION OF THE BOARD; July 24, 1991
1It was a dark and stormy day. Since morning, gale force winds had buffeted the Lake-view Thermal Generation Station in Port Credit. Brutal winds picked up quantities of lumber, two-by-fours and debris. These flew through the air together with sheet metal that was torn from parts of the Station. This was the situation on March 28, 1991 facing the employees and management involved in this case.
2This grievance arises because management determined that the weather situation on this day created an emergency and hazard to the safety of employees. As a result of this, management closed down the afternoon shift for the entire facility and prevented those employees who reported in for work from commencing their duties. Those who did report in were not given any reporting pay and the union alleges that this constitutes a violation of the following provisions of the collective agreement.
803 A. An employee who reports for work, unless directed not to report the previous Reporting day by his Employer, shall receive a minimum of three (3) hours' pay plus his Day appropriate daily travel or board allowance at the applicable rate when he reports for work but is unable to commence or continue to work because of circumstances beyond his control. An employee will not receive this allowance if he is unable to complete his shift as a result of inclement weather.
B. Notwithstanding Subsection 803, Item A above, when an Employer considers it necessary to shut down a job to avoid the possible loss of human life, because of an emergency situation that could endanger the life and safety of an employee, in such cases, employees will be compensated only for the actual time worked.
3There is no real dispute over the relevant facts. The weather situation on this particular day was quite extreme. The average wind speed for the day was 61 kilometers, gusting up to 93 kilometers per hour with the wind chill equivalent temperature near minus eight degrees Celsius The morning shift began as usual with close to 1,000 employees being able to report to duty and commence their responsibilities. However, by approximately 9:30 a.m., it became clear to management that the debris and lumber being swept around the southern part of the facility presented a danger to anyone who would be in that area. Immediately steps were taken to cordon off the the entire south section of the grounds outside of the plant itself. The parties both refer to this area as the "danger zone" on the day in question. Within the danger zone was one construction trailer where members of this bargaining unit assembled every morning upon reporting in and would meet for their breaks, lunches and at the conclusion of the day. Slightly to the west of this were another two trailers also used by members of this bargaining unit for the same purposes. When the southern part of the facility was cordoned off after 9:30 a.m. all the employees using the one trailer to the south of the building were told to reassemble at a different point within the facility proper. It appears that the other two trailers were used into the afternoon. However, employees' access to and from them was restricted by the safety measures implemented by management.
4Other than the extraordinary safety precautions taken to seal off the southern portion of the facility, the morning shift seems to have operated without any other incident or difficulty. However, by approximately 1:30 p.m., management had received a report from Environment Canada advising that the gale force winds would continue for the rest of the afternoon. Further, management became aware that sheet metal was being torn from parts of the building and presenting another hazard in the danger zone. Sometime between 1:30 and 2:00 p.m., management made a determination that it could not ensure the safety of afternoon shift employees. This shift included members of other bargaining units. Management listed several reasons for making this determination. First, it was felt that a significant number of crews and employees on the afternoon shift would have to make their way to construction trailers within the danger zone for purposes of assembly. Because of the flying debris, this was considered to be unsafe. Secondly, in the afternoon shift, there would be fewer security and supervisory staff available to enforce the barricades created for the employees' safety. While it is true that there was also a proportionately less staff in the afternoon shift, there would have only been one firefighter, one safety officer and a few security guards. Management felt that they could not properly maintain or monitor the safety zone. Third, there was concern for some of the trades which would have been scheduled to work in the actual danger zone. Fourth, there was concern that the on-set of darkness in the later afternoon would increase hazards of employees who would have to move from the construction trailers into the facility. Fifth, there was some concern over the fact that employees in the afternoon shift had a habit at arriving anywhere between 2:00 and 3:30 for a shift which began at 3:30. There was concern that there would be no adequate or appropriate facility for these people to await the beginning of their shift because they could not move into their regular assembly points which were in the danger zone and management could not arrange or determine any alternative for them. Finally, management was wary because despite all the precautions taken during the day shift to keep people out of the danger zone, three people had actually gotten through the corridors and exposed themselves to considerable danger.
5Because of all these considerations, management decided to instruct the guards attending the parking lot to turn all employees reporting in for the afternoon shift back to their homes. Their names were gathered for purposes of paying daily travel and board allowance under Article 8.03(a). However, no reporting pay was paid.
6In the meantime, all of the employees leaving at the end of the day shift exited the facility through the northern exits without incident. Between eight and twelve members of this bargaining unit were kept on from the morning shift for some overtime work in the same area that the afternoon shift bargaining members would have done electrical work. The parties agree that those eight to twelve employees from the morning shift did work which was separate and discreet from work that the afternoon shift would have done. The afternoon shift work was actually done at a later date at overtime rates by members of this bargaining unit.
7The evidence presented by management was given through Mr. Lavern Shillington. He was the Assistant Divisional Superintendent at the facility on this particular day and was in charge of the facility. It was his determination that there was an emergency and he testified that he sent the afternoon shift home on the basis of health and safety concerns. The essence of Mr. Shilling-ton's evidence was that the employees reporting for the afternoon shift could not practically be given assembly points and kept out of the danger zone as they reported in anywhere from 2:00 to 3:00 in the afternoon. Thus, it was considered essential to safety to simply keep the entire shift from reporting.
8The essence of the union's evidence was that while there may have been severe weather on that day, steps could have been taken to reassign assembly points for the various crews and to both instruct them on the dangers of entering the danger zone and ensure that no such entries were made. For example, the union's evidence established that construction trailers existed on the west side of the facility and that this bargaining unit had its own lunchroom within the plant itself which could have acted as an assembly point.
The Argument
9Both parties acknowledged that the onus was upon the union to establish the ingredients of its case in order to succeed in this grievance. However, given the unusual nature of the case, it was agreed that management would present its arguments first.
10Counsel for the employer stressed the language and importance of Article 8.03(b) to a determination of this case. First it was argued that the Article only imposes a subjective test upon the employer to make a determination of an emergency that could endanger the life or safety of an employee. It was argued that provided management's consideration is not arbitrary, discriminatory or made in bad faith, the discretion is given to the employer to make that determination and it is not reviewable by this Board. It was stressed that the collective agreement has given management the right to make such a determination and the Board was asked to "give affect to the parties' agreement". In the alternative, it was argued that if a standard of reasonableness should be applied to management's decision, we were asked to conclude that the circumstances were such and the time considerations upon the employer were such that the decision must be considered reasonable and made simply because of safety concerns for employees. Indeed, it was said that management's decision was necessary to comply with the Occupational Health and Safety Act. Finally, it was argued that this arbitration ought not to involve luxury "second guessing" of management's decision or to enable a board of arbitration with the benefit of hindsight in the luxury of time to substitute a decision which management had to make on the spot. Instead, the Board was asked to put itself back into the time frame when management made the decision and determine whether or not that decision applied to the collective agreement.
11Counsel for the union argued that the facts do not establish that an emergency existed or that there was "shutdown" on that day. It was conceded that the winds presented a safety concern and that Hydro "took proper steps to close off the south side of the building." However, it was argued that these winds should be considered only a "nuisance or inconvenience" as opposed to an emergency. The Board was asked how we could conclude that an emergency existed given the fact that the shift operated earlier that day and the people were able to exit without incident. It was argued that had the afternoon shift been allowed to report into work through the north part of the building and had been kept out of the danger zone, they could have worked without any risk to themselves and thus Article 8.03 be ought not to apply. Further, it was argued that the facts do not establish that a true shutdown occurred in that the entire plant was not closed because evidence showed that some employees did work overtime in the afternoon shift. Reliance was placed on the case of Colonial Cookies a Division of Beatrice Foods Inc., 1990 CanLII 12795 (ON LA), 13 L.A.C. 4th, 405 (Foisey). Finally, while it was conceded that Article 8.03 does grant an employer a discretion in the determination of an emergency, it was stressed that that discretion ought to be exercised reasonably. However, it was argued that management's decision in this case was not reasonable as various alternatives could have been used rather than sending the shift home and denying them reporting pay or the opportunity to work.
The Decision
12This case turns on the meaning and application of the collective agreement. Article 8.03 deals with reporting pay. Under Article 8.03(a) the parties have agreed that employees who report to work without receiving directions otherwise from the employer on the previous day are guaranteed the minimum of three hours pay plus the appropriate daily travel or Board allowances. However, under Article 8.03(b), the parties created an exception to this wherein they acknowledged situations where it may become necessary to "shutdown a job to avoid possible loss of human life" and to protect the life and safety of the employees. In this situation, the parties to the collective agreement have agreed that where the union members may report to work and then be sent home without a full shift they will still get their travel and board allowances, but they will only be compensated for the actual time they worked. The question this arbitration poses is what standard of arbitral review is there upon the employer when it makes a determination to shut down a job.
13After considering the evidence and arguments of the parties, it is our conclusion that the language of Article 8.03(b) is both clear and unusual. That Article gives to the employer the discretion to determine when it is necessary to shutdown the job because of an emergency. The language vests in the employer the subjective ability to make that determination. Had the language read "when it is necessary to shutdown a job to avoid the possible loss of human life etc.", it would be possible to accept the union's argument that an objective test must be applied to the circumstances. However, the language of Article 8.03 allows the employer to make the subjective determination or "consideration" of when it becomes necessary to shutdown a job. The exercise of that subjective discretion is not completely unlimited. Both parties agree that that discretion must be exercised in a way that is not arbitrary, discriminatory or in bad faith. There is no allegation of discriminatory or bad faith motivation or actions on behalf of management in this case. Nor does the evidence establish that the employer's decision was arbitrary. The employer considered a great many factors. With the benefit of hindsight and the luxury of time, it may be possible to see different ways which the employer could handle the situation, but it cannot be said on the basis of the evidence before us that the employer's decision was so reckless or headless of reasonable consideration that the decision can be considered arbitrary.
14Further, we cannot accept the union's argument that the language of this collective agreement creates a requirement of reasonableness by which to judge the employer's decision. Again, the language of Article 8.03 gives the employer the discretion to shutdown a job to protect the life and safety of employees. Nothing in the language of the collective agreement imposes a standard of reasonableness upon the employer. However, we feel it only fair to note by way of obiter dicta that the employer's actions were reasonable under these circumstances. The union was persuasive in establishing that there were other alternatives available to management which they it not consider fully at the time. However, the worst that can be said is that management erred on the side of caution by shutting down the shift in order to protect employees health and safety. Under the circumstances, we cannot say that management acted unreasonably. On the contrary, their decision was reasonable and prudent on all the circumstances.
15On the basis of all these factors, we have determined that the grievance must be dismissed.