by Contract Number (PDF) - OCSEA

one’s previous conduct, it would be unfair or
unjust to make the statement). 92
Being “on call” is not necessarily the same as
being on stand-by. Whereas employees are not
required to be near a telephone when “on call,”
they are so required when on stand-by under
ODOT procedures. The arbitrator did not decide
whether “on call” employees are entitled to
stand-by pay since that was not at issue in the
grievance. 92
The distinction between being on stand-by and
being on call is that an employee on stand-by is
required to keep himself available for work. An
employee who is “on call” is not required to
respond when contacted by beeper, nor is he
required to accept the work. In differentiating the
two statuses the important questions are (1) is
employee free to use his time for his own benefit
and (2) are the call backs so frequent that
employee is not really free to us the time for his
own benefit. 100
The status of the EPA’s On Scene Coordinator
does not depend on whether one calls it on-call
or standby, but on whether he or she is required
by the agency…to be available for possible call
to work, under Article 13,12 of the contract. “oncall”
as used for the On-scene Coordinators
means “stand-by” within the meaning of Article
13.12. 464 (1992-94 contract)
Employees who are restricted in their physical
location and personal condition or whose time is
so interrupted by employer calls that they are not
free to use the time effectively for their own
purposes, and who are informed that they are
required to be available, are working. 464
(1992-94 contract)
The grievant’s vacancy posting, position
description, and class specifications state
continuous on-call status as a job duty. It is clear
that the grievant had no option but to be on call
and respond to calls. 464 (1992-94 contract)
13.13 – Flextime/Four Day Work Week
13.14 – Shift Rotation, Swing Shifts, Split
Shifts
The arbitrator determined that there was never a
requirement of readiness conveyed to the
grievants. This was supported by the fact that in
at least thirteen years, the employer had never
disciplined anyone for failing to respond. They
were not required to stay at a specific location or
within close proximity to work tools. The
arbitrator noted that although the grievants did
alter their lifestyles somewhat to accommodate
their employer’s needs, they were largely free to
live their lives as they chose. 831
13.15 – Emergency Leave
Section 13.15 of the agreement gives the
authority to declare a snow emergency to the
employer, but does not specify that the Director
of Highway Safety is the sole and exclusive
authority to issue declarations of emergency. The
Deputy Director of ODOT District5, called the
situation an emergency when asking District 5
employees to report to work and work overtime
to the limits of their capabilities. It is reasonable
for the employees to believe that he had the
proper authority to do so and they are entitled to
rely upon his representations in such
circumstances. The case is the same for those
employees who had previously received a letter
stating that they were to report to work when the
Director of Highway Safety declared an
emergency. Those employees are not to be
expected to ask the Deputy Director if he is
acting upon the authority of the Director of
Highway Safety before responding to the call.
275
The agreement gives the authority to declare an
emergency to the employer. Since, under the
contract, an emergency is considered to exist
when the employer declares it so, the arbitrator is
not permitted to second guess the employer as to
whether an emergency existed. 275
Section 13.15 indicated that an emergency does
not exist if the situation is normal or reasonably
foreseeable at the work site. Fourteen inches of
snow in April in south central Ohio is not
reasonably foreseeable. 275
In the arbitrator’s interpretation of Section 13.15
of the Agreement the work “emergency” was
defined. First, an emergency is not limited to
weather conditions. The arbitrator used the
following analysis:
1. Is the event (a prison escape) “normal or
reasonably foreseeable to the place or
employment and/or position description of the
employee?” An escape is a situation reasonably
foreseeable under the position description of a
Correctional Officer.