ARBITRATION
DECISION NO.:
464
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Environmental Protection Agency
DATE OF
ARBITRATION:
June 17, 1992
DATE OF
DECISION:
August 10, 1992
GRIEVANT:
Jerald M. Gerber
OCB
GRIEVANCE NO.:
12-00-(90-05-18)-0018-01-13
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Bob J. Rowland,
Advocate
John Porter,
Second Chair
FOR THE
EMPLOYER:
William R. Kirk,
Advocate
Tim Wagner,
Second Chair
KEY WORDS:
Stand-by Pay Criteria
Call-back Pay
Arbitrability
Timeliness
ARTICLES:
Article 13 - Work Week,
Schedules and Overtime
§13.02-Work
Schedules
§13.12-Stand-By
Pay
Article 25 - Grievance
Procedure
§25.02-Grievance
Steps
FACTS:
The Grievant is an Emergency
On-Scene Coordinator (OSC) employed by the Ohio Environmental Protection Agency
(EPA) in the Northwest District Office.
His normal working hours are 7 a.m. to 4 p.m., Monday through
Friday. In addition, he is also
"on-call" from 4 p.m. to 7 a.m., Monday through Friday and on
alternate weekends. He is required to
maintain a degree of readiness and be prepared to investigate reports of spills
and, if necessary, coordinate the clean-up effort. He has never failed to respond to a call. He filed a grievance in May of 1990 because
he believed that his "on-call" status and the mandatory restrictions
it placed on his personal life qualified him for stand-by pay.
The Emergency Response Section of
the Ohio EPA is responsible for the timely response, assessment and subsequent
clean-up of any spills or releases of hazardous substances into the
environment. The frequency of spills
varies with the season, ranging from two to twenty per night. Due to the fact that spills occur
haphazardly and are possibly dangerous to the public, On Scene Coordinators
must "stand-by" 24 hours per day, seven days per week. To facilitate a timely response, each
Coordinator is provided with a beeper and a State vehicle equipped with a
mobile cellular phone.
UNION’S
POSITION:
This grievance was filed to
protest a continuing violation of the Contract. The grievant has been required to be ready on a round the clock
basis to respond to emergencies since he took this position. Since this grievance was filed within ten
days of any one instance of his having been on stand-by, it has been timely
filed under Article 25.02.
The grievant is required to be
available for possible call back to work which, by the plain language of the
contract, entitles him to compensation under Article 13.12 Stand-by pay. The criteria for determining stand-by status
is set out in the Cutlip decision.
In the instant case, management places conditions upon the on-call OSCs
which are identical to those outlined in Cutlip. The grievant was to be within 30 miles of
his vehicle, answer his beeper within 10 minutes, stay sober and otherwise be
ready to respond. In addition, by
implication, he had to be within a reasonable distance from his region,
otherwise it would not be feasible for him to respond to a spill in a timely
manner.
Finally, management contended that
the grievant and other OSCs were never subject to discipline for failing to
respond. Logically, the emergency
response system would fail if employees were allowed to disregard their duty to
respond. In addition, another employee
who is part of the emergency system was disciplined for not performing the
duties assigned to him.
The grievant is entitled to stand-by pay retroactive
to ten days prior to the filing of the grievance. Alternately, if the arbitrator determined that the grievant is
not entitled to stand-by pay then the grievant should not be subject to
discipline for failing to meet the employer's restrictions.
EMPLOYER'S
POSITION:
The State has required OSCs to be
on-call since before the first Agreement was signed. Further, the grievant was on-call for seven months before filing
this grievance. Thus the grievance was
filed in excess of the contractual time lines for the filing of a grievance as
specified in Article 25.02.
The grievant was not on stand-by
during the period at issue, but merely on-call. In other words, he is waiting to be engaged, not engaged to
wait. The Cutlip decision
established the following criteria to define situations which warrant stand-by
pay: restricted to one physical
location, remain well-rested and sober, subject to discharge for failing to
respond, and required by direct communication from the employer to be on
stand-by status. In the instant case,
the employer has never communicated that the grievant is on stand-by nor that he
can be disciplined for failing to respond.
The State provides cellular phones and vehicles to help relieve any
restrictions that the established policies would have placed on the grievant's
personal life. In fact, testimony
demonstrates that if an OSC is not available the established procedure is to
contact another OSC instead.
Another factor stated in Cutlip
which constitutes being on stand-by is the frequency of call backs. In the instant case, evidence based on the
grievant's time card and personal log shows that in 537 days he was called back
between 37 and 48 times. This is not a
sufficient number of instances to warrant being placed on stand-by.
The State did not violate the
Contract. The grievant was placed
on-call and was not required to be on stand-by. The Union has not met its burden of proof, therefore the
grievance should be denied in its entirety.
ARBITRATOR'S
OPINION:
The grievance is timely and
arbitrable. It protests a perceived
continuing violation of the Contract.
The filing window commences each time the Grievant is on-call and not compensated
with stand-by pay.
The grievant's situation is
sufficiently different from that of Cutlip to warrant his being paid
stand-by pay within the meaning of Article 13.12. Several documents, including the grievant's position description,
were introduced and they make it clear that being "on-call" is an
integral part of the position. The
arbitrator was incredulous that management stated that it would not take
corrective action if an employee failed to perform his job duties. These documents also effectively placed the
grievant on notice that he was required to obey the regulations set forth. While management maintains that it had an
established contingency plan if the grievant did not respond, this was not
adequately conveyed to the grievant. It
was his understanding that he had no option other than to obey the regulations
and restrictions management placed upon the OSCs.
The State has provided OSCs with
beepers, cellular phones and State vehicles in order to allow a greater amount
of flexibility. Even so, the grievant
testified to the burdens the location restrictions place on his
personal life. He must either
reschedule events or get special permission on a regular basis. This clearly meets the physical location
restriction.
In conclusion, the physical
location restriction and the work-readiness restrictions of the availability
element in order to receive stand-by pay are clearly met. "On-call" as used for the On-Scene
Coordinators means "stand-by" within the meaning of Article
13.12. It follows that the grievant is
entitled to standby pay.
AWARD:
The grievant is required by the
Agency to be on stand-by. He is to be
paid 25% of his base rate of pay for each hour he has been on stand-by status
back to May 8,1990, ten days prior to the filing of this grievance.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION LOCAL 11,
A.F.S.C.M.E., AFL-CIO
and
STATE OF OHIO
ENVIRONMENTAL PROTECTION
AGENCY
OPINION and AWARD
Anna DuVal Smith, Arbitrator
Case:
12-00-900518-0018-01-13
Jerald M. Gerber, Grievant
Arbitrability
Stand-By
Pay
Appearances
For OSCEA Local 11, AFSCME:
Bob J.
Rowland;
Staff
Representative,
OCSEA
Local 11, AFSCME;
Advocate
John
Porter;
Assistant
Director of Arbitration,
OCSEA
Local 11, AFSCME;
Second
Chair
Jerald M.
Gerber;
Environmental
Specialist 2,
Ohio EPA;
Grievant
Donald C.
Higgins;
Environmental
Specialist 3,
Ohio EPA;
Witness
Michael
Dalton;
Emergency
Response Supervisor,
Ohio EPA;
Adverse Witness
Joseph
Ragaglia;
Arbitration
Clerk, OCSEA
Local 11,
AFSCME; Observer
For the State of Ohio:
William R.
Kirk;
Labor
Relations Administrator,
Ohio
Environmental Protection Agency;
Advocate
Tim
Wagner;
Chief of
Arbitration Services,
Ohio Office
of Collective Bargaining;
Second
Chair and Witness
Timothy
Hickin;
Emergency
Response Supervisor,
Ohio EPA;
Witness
Tom
Olander;
Human
Resources Administrator,
Ohio EPA;
Witness
Michael
Dalton;
Emergency
Response Supervisor,
Ohio EPA;
Witness
Kenneth A.
Schultz;
Chemical
Preparedness Manager,
Ohio EPA;
Witness
Janice A.
Carlson;
Acting
Chief, Division of Emergency
and
Remedial Response,
Ohio EPA;
Observer
Kevin
Clouse;
Manager,
ERSIS,
Ohio EPA;
Observer
Hearing
Pursuant to the procedures of the
parties a hearing was held at 9:00 a.m. on June 17, 1992, at the offices of the
Ohio Civil Service Employees Association, Columbus, Ohio, before Anna DuVal
Smith, Arbitrator. The parties were
given a full opportunity to present written evidence and documentation, to
examine and cross-examine witnesses, who were sworn, and to argue their
respective positions. The oral hearing
concluded at 1:15 p.m., June 17, 1992.
Written closing statements were exchanged through the Arbitrator on July
11, 1992, and the record closed on that date.
This opinion and award is based solely on the record as described
herein.
Issue
The parties stipulated that the
issues to be decided by the Arbitrator are:
1. Is the grievance
properly before the arbitrator (was it filed in a timely manner according to
the language contained in Article 25 - Grievance Procedure of the 1989-1991
OCSEA/AFSCME Agreement)?
2. Is the Grievant
required by the Agency to be on stand-by?
If so, what shall the remedy be?
3. If he is not
entitled to stand-by pay, can he be disciplined for failing to respond?
Joint
Exhibits
1. Vacancy Posting -
PCN 14202.0 - Deadlining August 14, 1989
2. Position
Description PCN 14202.0 (Date 6/13/89)
3. Position
Description PCN 14202.0 (Date 1/24/90)
4. Position
Description PCN 14202.0 (Date 3/12/92)
5. Classification
Specifications for Emergency Response Coordinator dated 8/2/87, 7/l/89, and
3/26/90
6a. Time Cards for
Jerald M. Gerber, 10/8/89-5/18/90
6b. Time Accounting
System Activity Code List
7. 1986 Master Agreement,
OCSEA/AFSCME
8. 1989 Master
Agreement, OCSEA/AFSCME
9· Grievance Trail
& Withdrawal, Grievance #12-00-860165-0001-01-13-0 (aka GR02B-86-13)
(Higgins, Grievant)
10. Arbitration Award
#154 (David Cutlip et al., Grievants; David M. Pincus, Arbitrator)
11. Arbitration Award
#158 (Jack O'Boyle, Grievant; Nicholas Duda, Jr., Arbitrator)
12. Letter to Reginald
A. Brown from Janietta R. Smith dated 11/25/87
13. Inter-Office
Memorandum to R. Brown from K. Schultz dated 6/20/88
14. Inter-Office
Memorandum to all OSCs from M. Dalton dated 7/11/88
15. Inter-Office
Memorandum to R. Brown from M. Dalton dated 1/23/92
16. Grievance
#12-00-900518-0018-01-13, including Step 3 and Step 4 responses.
17. Interpretative
Bulletin, Part 785: Hours Worked Under
the Fair Labor Standards Act of 1938, As Amended
18. Section 40.09
(Stand-by Pay) of State of Ohio/District 1199 Collective Bargaining Agreement.
Relevant
Contract Provisions
Article 13
- Work Week, Schedules and Overtime
§13.12 - Stand-By Pay
An employee is entitled to
stand-by pay if he/she is required by the Agency to be on stand-by, that is, to
be available for possible call to work.
An employee entitled to stand-by pay shall receive twenty-five percent
(25%) of his/her base rate of pay for each hour he/she is in stand-by
status. Stand-by time will be excluded
from overtime calculation.
Article 25
- Grievance Procedure
§25.02 - Grievance Steps
Step 1 - Immediate Supervisor
The grievant and/or the Union
shall orally raise the grievance with the grievant's supervisor who is outside
of the bargaining unit. The supervisor
shall be informed that this discussion constitutes the first step of the
grievance procedure. All grievances
must be presented not later than ten (10) working days from the date the
grievant became or reasonable should have become aware of the occurrence giving
rise to the grievance not to exceed a total of thirty (30) days after the
event....
Background
This case involves whether certain
employees who are "on-call" are actually on "stand-by," and
the compensation and discipline consequences of their status.
The Employer is a state
environmental protection agency. Among
its functions is responding to reports of oil spills and other releases of
hazardous substances into the environment.
This function lies within the purview of the Emergency Response Section
which employs a number (11-12) of On-Scene Coordinators (OSCs). This position entails, amongst else,
investigating such reports and coordinating necessary cleanup. Because spill reports may be received any
time of day or night and may present an immediate public threat, On-Scene
Coordinators are "on-call 24 hours/day, seven days/week" (Joint Ex.
1-5). According to Emergency Response
Supervisor Hickin, the frequency of reports varies with the season, ranging
from approximately two to fourteen or twenty per night.
To facilitate timely response to
spill reports, each On-Scene Coordinator is provided with a beeper and a State
vehicle containing necessary equipment including a mobile cellular phone. An Inter-Office Memorandum (Joint Ex. 14)
dated July 11, 1988, defines Agency expectations of on-call On-Scene
Coordinators:
During "On-Call" periods, the OSC is expected to
maintain himself and his equipment in condition to respond to spills. This means the OSC must be sober, his
vehicle must be fueled and mechanically sound, and his equipment must be in the
vehicle and in working condition.
Equipment not working properly should be replaced or repaired as soon as
possible. In addition, the OSC must
either remain within one-half hour travel of his vehicle or have the vehicle
with him.
While "On-Call", the OSC is to wear his assigned
pager and ensure it is in working condition, unless he is at home or has
supplied the duty officer with an alternative telephone number where he can be
contacted. When paged, the OSC is to
return the call within ten minutes of receiving the page. OSCs equipped with a cellular telephone are
encouraged to transfer the telephone to their personal vehicle when they are
away from home.
Testimony was given on the
procedure used when a spill report or citizen complaint is received on the 800
telephone number. The duty officer
receiving the call attempts to reach the on-call On-Scene Coordinator in the
area of the report. Employer witnesses
Hickin, Dalton and Shultz testified that if the OSC did not answer the page or
indicated s/he was unable to respond to the report, another On-Scene
Coordinator was contacted. Employer and
Union witnesses differed as to their understanding of discipline consequences
for failing to answer a page or otherwise take a hand-off from the duty
officer.
Jerald Gerber, the Grievant in
this case, is an On-Scene Coordinator employed in the Northwest District
Office, one of five geographic districts of the state, since October,
1989. His normal working hours are 7
a.m. to 4 p.m., Monday through Friday.
He is also "on call" 4 p.m. to 7 a.m., Monday through Friday,
and alternates weekends "on call" with another individual. He has never failed to respond to a
call. Personal records kept for 1991-92
(Union Ex. 1) show call-outs at the rate of thirty per year. In addition, he estimates he responds by
telephone to another four reports per month.
Believing that his on-call status qualified him for stand-by pay under
Article 13.12 of the Contract, and not receiving such pay, Mr. Gerber filed a
grievance on May 18, 1990. Being
unresolved through lower steps of the grievance procedure, the case came to
arbitration, where it presently resides for final and binding decision. It also bears noting that another grievance
was filed over the same issue on July 23, 1986, but this grievance was
withdrawn on April 19, 1991 (Joint Ex. 9).
Arbitrability
Issue
Arguments of the Parties
The Employer points
out that it has required all On-Scene Coordinators to be on-call since before
the first Agreement was signed. It
further states that the Grievant occupied his position and was required to be
on-call for nearly seven months before filing a grievance. Thus, the State argues, the grievance was
filed in excess of the contractual limitations for filing of grievances
specified in Article 25.02.
The Union argues
that this grievance was filed in protest of a continuing violation of the
Contract since the grievance has been continuously paid improperly for
maintaining a state of 24-hour emergency stand-by readiness. Citing numerous arbitration decision,
including this Arbitrator's holding in Edgar (Parties' Case No.
04-00-880107-0003-01-07), the Union contends that since this grievance was
filed within ten days of one occurrence it must be deemed timely under Article
25.02.
Opinion of the Arbitrator
This grievance protests a
continuing perceived violation of the Contract. The filing window thus commences each time the Grievant is on
call and not compensated with stand-by pay.
The record shows the Grievant was in such a position
within ten days of the filing of the grievance. His grievance is thus timely and therefore arbitrable.
Stand-By
Status Issue
Argument of the Union
The Union first addresses the
issue of whether "on-call” status is really "stand-by"
status. It takes the position that the
Grievant was requested to be available for a possible call to work. Therefore, by the plain language of the
Agreement compelling standby pay if an employee "is required by the Agency
to be on stand-by, that is, to be available for possible call to work,"
the Grievant is entitled to such compensation.
Taking up criteria of stand-by
status addressed in the Cutlip decision (Joint Ex. 10), the Union
maintains that the instant case differs from that one in the frequency with
which the employee is affected. Cutlip
was scheduled for stand-by only seven times in two years, while Gerber is on
stand-by almost continuously.
Additionally, Cutlip was called out only twice in two years, while
Gerber's log shows fifty responses in nineteen months. He also testified he received but did not
record phone calls not requiring him to go out.
Notwithstanding Management's
protestations to the contrary, the Grievant was required to be on stand-by
status, claims the Union. The Dalton
memorandum (Joint Ex. 14) places conditions on on-call OSCs that they are
expected to fulfill in meeting their job obligations. Nowhere are requirements stated to be optional. Not until arbitration, says the Union, did the
Grievant learn that he could refuse phone calls or call-outs.
Management' s argument that the
employees were not specifically notified they were on stand-by amounts to mere
sophistry, says the Union. What matters
is the substance of the restrictions, not the label used. It is ridiculous for Management to take a
position on paper, as it did on the Dalton memorandum, and then later claim it
did not mean it and no disciplinary consequences result from failure to meet
expectations of job performance.
The Union goes on to note the
impact the on-call restrictions have on the Grievant' s lifestyle, such as
recreation, shopping, and visits with family.
The Grievant's testimony was supported by a Management employee who
experienced an even more constrained lifestyle as a result of the policy
because of his rural residence.
With respect to discipline, the
union contends it was reasonable for the Grievant to believe he could be
disciplined if he did not respond. The
emergency response system would fail if Management did not hold the hammer of
discipline over employees' heads because the Agency is unwilling to compensate
employees for the restrictions on their off-duty lives. Moreover, Management testimony regarding
potential for discipline was inconsistent.
Yet a night duty officer, whose job functions are similar to the
Grievant's, was disciplined.
Although not conceding the
Grievant's eligibility for stand-by pay, the Union contends that if the
Arbitrator determines the Grievant not to be so entitled, he should be free of
fear from discipline for failing to meet the Employer's
restrictions. It says the Agency is
trying to get stand-by time without paying for it, relying on the
conscientiousness of employees such as the Grievant and Mr. Higgins. The Arbitrator, says the Union, should put a
stop to this practice by prohibiting discipline.
The Union requests a remedy of 25
percent of the Grievant's rate of pay for every hour he was in stand-by status
back to May 8, 1990, ten days prior to the filing of the grievance. It further asks that the Arbitrator retain
jurisdiction pending calculation of the remedy.
Argument of the Employer
The Employer takes the position
that the Grievant is not on stand-by during the period at issue, but is on
call. It states that no stand-by
requirement has ever been communicated nor has the term "on stand-by"
ever been used. On the other hand,
"on-call" requirements and expectations have been communicated
through the Dalton memorandum, vacancy posting, position description, and
classification specifications (Joint Exs. 1-5, 14), but the Union has never
grieved its use in the classification specification as permitted by the
Contract.
The Employer goes on to claim that
the Grievant while on-call is waiting to be engaged, not engaged to wait. Waiting is not an integral part of his
job. In support of its position, the
Employer cites Article 785.17 -- On-Call Time from the Interpretative
Bulletin, Part 785: Hours Worked Under
the Fair Labor Standards Act of 1938, As Amended:
An employee who is not required to remain on the employer’s
premises but merely required to leave word at his home or with company
officials where he may be reached is not working while on-call.
(Joint Ex. 17)
The OCS is, as testimony shows, free to use this time for
his own purposes, having virtually no restrictions placed upon him. The State provides a pager, cellular phone
and vehicle to ensure the OSC's freedom and to eliminate on-call
inconvenience. Moreover, when the
Grievant is called out, he is paid in accordance with Article 13.08 --
Call-Back Pay. He is also eligible for
overtime when on the phone, though he has elected not to claim the time.
The Employer refers to three
arbitration decisions on stand-by pay.
It maintains that the Cutlip decision (Joint Ex. 10) established
certain criteria for an employee to be considered on stand-by: restricted to one physical location, remain
well-rested and sober, subject to discharge for failing to respond, and
required by direct communication from the Employer to be on stand-by
status. It states that the Union was
unable to show the latter condition because none exists. In fact, the record shows that when an
on-call OSC is unavailable, established procedure is simply to call the next
one. Additionally, testimony and documents
demonstrate it is not the Agency's policy or practice to discipline for failure
to respond.
Another factor referred to in the Cutlip
case is the frequency of call-outs as an indication of the employee's freedom
to use his on-call time. The State
claims the Grievant's time cards (Joint Ex. 6a) show he was called back 37 times
in 238 days on-call, or less than 16 percent of the time. The Grievant’s log (Union Ex. 1) indicates
48 responses in 537 days, or less than 9 percent. This, says the Employer, is not sufficient frequency to warrant
being placed on stand-by.
A second arbitration decision
jointly submitted was the parties' O'Boyle case (Joint Ex. 11). The Employer contends that this case is
distinguished by its facts: the Signal
Electricians were informed they were on stand-by status, but no such communication
took place for the Grievant. Also, Ohio
EPA employees are not restricted in their location to remain telephone
accessible, nor are they subject to discipline if they do not respond to a
call.
The third decision referred to by
the State interprets different stand-by language of a contract between the
State and the Ohio Health Care Employees Union. In the view of the Employer, this case is not relevant to the
instant one by virtue of its different language.
In conclusion, the Employer states
it does not believe it has violated the Contract. The Union has not met its burden of proof, but the Employer has
shown that OSCs are placed on-call, not required to be on stand-by. It therefore asks that the grievance be
denied in its entirety.
Opinion of the Arbitrator
Determination of the On-Scene
Coordinators’ status--on-call or stand-by--depends not on the label Management
chooses to apply, but on whether they are "required by the Agency...to be
available for possible call to work" (Article 13.12, Joint Ex. 8). The criteria for such determination were
discussed by Arbitrator Pincus in the aforementioned Cutlip decision and
ultimately derive from FLSA concepts of working and non-working time. The availability dimension of stand-by
status is addressed by restrictions as to physical location and work-ready
condition (well-rested and sober)
Arbitrator Pincus also considers frequency of calls and their length as
a possible impingement on the employee's use of time. Thus, an employee who is so restricted in his physical location
and personal condition or whose time is so interrupted by employer calls that
he is not free to use the time effectively for his own purposes, is
working. The requirement dimension of
stand-by status is addressed by the potential for discipline should the
employee not comply with the availability restrictions. Arbitrator Pincus adds that employees must
be informed that they are required to be available. He also discusses the requirement dimension in terms of
probability and necessity of call-out.
So, for example, the employer might require an employee to hold himself
in a work-ready condition and location if there is a good chance that the
services of the employee will be necessary, but the requirement must be
communicated. "Such a [standby]
job status commands a certain readiness; it does not request an employee's
availability" (Cutlip, p. 25).
Now the situation faced by the
"on-call" OSC is substantially different from that faced by the
grievants in the Cutlip case.
Gerber is "on-call" all but two days out of each fourteen, the
Cutlip grievants were on-call for a week about seven times in about
seventeen months. Gerber is phoned and
called out much more frequently--by both State and Union count--than
Cutlip. While both carried pagers,
Gerber faces the additional restriction of staying within ten minutes of a
phone but is provided with a mobile cellular phone. Cutlip was not constrained in physical location as evidenced by
the July 4 incident. Gerber must remain
within thirty minutes of his State vehicle, and the rules for personal use of
the vehicle are far from clear. Gerber
must be sober. No such condition is
indicated for Cutlip. Cutlip rotated
his on-call periods with 10-14 other maintenance workers who would be called if
Cutlip did not respond to his page while on-call. Gerber rotates only weekends and with only one other
employee. Although there are 11-12 OSCs
state-wide plus five others who respond to spills, the fact is that there are
far fewer alternatives to Gerber than to Cutlip. Without notification, the Cutlip grievants concluded they
were required to be available for work, but in fact were not since they could
switch roster positions, refuse requests, and fail to respond to their page
without discipline, as evidenced by the July 4 incident. Gerber's vacancy posting, position
description and classification specifications all state continuous
"on-call" status as a job duty, the Dalton memo is very clear that
stated restrictions while "on call" are expected: “’On-Call' means the OSC is prepared and
ready to respond,” "the OSC is expected to maintain himself and his
equipment in condition to respond" (Joint Ex. 14). The Smith letter (Joint Ex. 12) states,
"While it is the nature of this position to respond to emergencies once
notified, it is neither practice nor policy to impose discipline should you
fail to respond to an emergency situation due to circumstances beyond your
control.” The entire thrust of these
documents is that compliance with "on-call" restrictions is required
and subject to discipline. The
arbitrator in the Cutlip case concluded his grievants were not on
stand-by, but were within the purview of the Call-Back Pay provision
(§13.08). The question here is whether
the conditions faced by Gerber are different enough to cross the line into the
realm of compensable working time within the meaning of §13.12. I conclude they are by the reasoning set
forth below.
Taking first the
"required" element, the Union contends the Dalton memo makes it plain
the OSCs have no option and that it is ridiculous for Management to now take a
position opposite to that expressed on its own documents. I agree.
If the authority of the employer is to have any credibility with the
workforce, it must be bound by its own promulgations. Documents setting forth the job duties of the position whose very
essence is responding to emergencies make being being "on-call"
continuously one of those duties. I
find it incredulous that an employer would not take corrective action if an
employee failed to perform his job duties.
The
Dalton memo reinforces that this is a requirement and defines what is necessary
to fulfill the requirement. The Smith
letter merely states an exception:
"circumstances beyond your control." I conclude the Agency effectively placed the Grievant on notice
that he was required to do what the Agency said. Reinforcing this conclusion are what I view to be the practical
realities of the Grievant's functions and the paucity of alternatives should he
not perform them. The State defends by
saying it did not order him to stand-by, it has a procedure whereby other OSCs
are contacted if the "on-call" OSC in the area is unprepared, and
that it does not discipline non-responsive OSCs. Contingency plans and accommodations when appropriate are
well-advised. But--and this is
critical--the Grievant did not get the word.
The message he got through Management documents was that he had no
option. It is to his credit that he
acted responsibly, obeying the "work then grieve" axiom of industrial
common law, with the result that this case comes before me for interpretation
of the stand-by pay article. One cannot
help but wonder whether the case would have been presented as a discipline
issue had the Grievant not answered a page or been unable to respond to a
Priority 1 spill because he or his vehicle was out of range. Fortunately, OSCs have always responded to
such emergencies. I turn now to the
price of this record and the "on-call" restrictions' impact on the
OSC's lifestyle by taking up the "availability" element.
The State has done a great deal to ensure the continuous
availability of OSCs in the event of emergencies while providing them
with a fair amount off flexibility.
First, I do not agree with the Union that the frequency of calls and
call-outs are such as to prevent the OSC from using his "on-call"
time for his own purposes. The problem
is more with the amount of time he is "on-call" and his restrictions
during the period. It is clear that
unless calls are quite numerous an employee who merely must carry a pager or
leave a phone number so the employer can reach him has his off-duty time to
himself. Such was the case with Cutlip
who consequently fell under the Call-Back Pay provision, being not engaged to
wait for the call back to work.
Carrying a pager and leaving a phone number do not unduly restrict a
person's lifestyle. Gerber, though,
must be within ten minutes of a telephone and thirty minutes of his State
vehicle, which may be likened to the employer's premises. Both of these constitute physical location
constraints, albeit that the physical locations are themselves mobile. The ten minute radius is overcome by the
portable cellular phone which is specifically encouraged to be transferred to
the employee's personal vehicle as necessary.
The constraint of the thirty minute radius, however, is not
overcome. Although Mr. Shultz testified
OSCs have personal use of the vehicles, his examples indicated this was on an
ad hoc-by permission basis. The
Grievant, on the other hand, gave examples illustrating the impact of such
nearly daily location restrictions on his life. It is not that he misses an occasional ball game or reschedules
his activities from time to time, but that he must do so or get special
permission on a regular basis. The physical
location restriction element is met.
As to the personal condition of
the OSC while "on-call," the Dalton memo plainly states that
"the OSC is expected to maintain himself and his equipment in condition to
respond to spills" and even goes on to clarify "must be sober."
In sum, both the physical location
and work-readiness restrictions of the availability element are met. That the OSCs are required to be available
for possible call to work while "on-call" is reinforced by the
off-call contrast the Dalton memo gives:
"It simply means that you revert to the same status as other state
of Ohio employees and are not expected to remain readily available." Notwithstanding Mr. Shultz's definition of
standby on Joint Exhibit 13 and the Agency's right to promulgate policies and
procedures, and otherwise to manage its operations, "on-call" as used
for the On-Scene Coordinators means "stand-by" within the meaning of
Article 13.12. It follows that the
Grievant is entitled to Stand-By Pay.
Award
The grievance is granted.
As to the first question, the
grievance was timely filed in accordance with Article 25 and is therefore
properly before the Arbitrator.
As to the second question, the
Grievant is required by the Agency to be on stand-by. He is to be paid 25 percent of his base rate of pay for each hour
he has been on stand-by status back to May 8, 1990, ten days prior to the
filing of this grievance. The Arbitrator
retains jurisdiction for sixty days to resolve any disputes over the
calculation of this award.
Anna DuVal Smith, Ph.D.'
Arbitrator
August 10, 1992
Shaker Heights, Ohio
OEPA173.RPT