HomeMy WebLinkAbout1988-0311.Union.88-11-22'IN THE MATTER OF AN ARRITRATION :-~
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Before:
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(Ministry of.Correctional Seryi’ce!).’ i ,-.
Employer. ~_---- - -- .-... _,_~_ _~__ __~
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M.Q. Watters . Vice-Chaiyperson
F. Taylor Member "
D. Wallace Member
For the Grievor:
For the Employer:
Gowling & Henderson
Barristers and Solicitors
J.F: Benedict
Manager Staff Relation's & Compensation
Ministry of Correctional Services
Hearing: --
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This proceeding arise8 from a union grievance dated Harch
30, 1988; the m.steri.sl pert of which ‘.resds as follovs:
?XAiEF!ENT OF GRIEVANCE:
The Union grieves Chat the employer is in violation of
Articles 4 and 18 of the collective agreement, : .,2 not .exclusively.~. These vio1stioa.r arise 8s a resulJ;of,
butt are not lioited to,.t,he employer’s failure to staff
the’ Seult’ Sti. Xeria jail’ with. the appropri’at~e trained/
classified Correctionrl Officers. ...- ,,
SETTLEMENT DESIRED: “..,~ ., .i ,’ .‘.
1 ~That ‘the Board orders the employer to decl~are- thit“the’:c’. ~.
” actions as,,dee.cribed above are contrary to, the .) .,“y.’ ” ,~ : - _
classified service. The remaining twenty five vere appointed to
the unclassified service. The jail operates on a three shift
basis, seven deys per vegk. The c.omposition of each shift vaties
in respect of the ratio between classified and unclassified staff.
It vould seem, hovever, that ~there is gene,relly 8 mix of these
tvo categories of employees on any given shift.
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The complaint of the union focuses on theratio of
unclaseified to classified staff. Specifically, it alleged that
there are ‘en insufficient number of elaseified staff to meet.rhe
“permanent’! demonda of the institution. In the estimation of the
union, come tan CO eixteen additional classified employees are
required for this purpose. In this regard, the union submitted . ., -. ‘r”. -; 1 that ma.nagement at the Sault Stc. Marie jail ,had relied ~~.. -- ,. .
“exceesiv’ely” on unclassified staff, especially in the .per,j’b’d ‘,
.; .;,,- .A. subsequent to Hay, 1986.. Indeed, the thrust of, its posit:~,~~ vas ,, ~“f..+ . ,;!.;
. ‘~ that, auc< staff had beea.utilized to fill what shoqld, be :, , ,‘,, .-:,-.. .,: If, I permanent position-s in the cl,aesified service. ‘Ihe ;di&~(~~rgued
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the-t .__ t-pie prsctice ,violated the collective. eE;e~~~~t-~ij+vo’ -_L_
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_: ,’ ,,,~,;c!: ., -,--; -.,-. .~.-- --_ -__. ,._ _, ...._ _” ~ -A -7 L. respects. Piratly, as the positions being filled were -. -.‘i( .: -i .- ~~~--~~_ l ,- .’ t :.; .---‘-.T-;-..-.--;‘-; A....... - .._ -. __.
,.. “permanent” ins nature, they should,be filled ~b,y clasalf,aed .~~. :. .--.+7?~,--~.~~i--L;- ‘_ ._ .~~‘.,~ ~.I ,-I,Le ;‘... ; :’ ,. “7. 1 ..! employees puts&at to a compet’ition under.., qCticaeLq.~~S~e~;:Otier:~~;--_~..- _.
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thee-excessive-use of-unclassified stafffcreated a ligitimaie ~~--~. --~ . ~.~..
healrh and safety concern vitbin the parametersSof: Articl.e-!_8_(_1_)_-.,
Counsel for the union noted that.unclasaified staff did not
receive the same level of training a’s did the Correctional
Officers who were part of the classified service. Further, .the
Board was advised that such personnel ware restricted in t’erms of
the functions that they could perform.- It was the position of
the union that the use of a large number of unclassified
Correctional Officers at the facility in question served to
expose all staff to sn unreasonable risk of harm.
At the outset of the hearing, and be~fore any ividence was.
presented, the employer raised a prel’iminary objection ~tu the
arbitrebility of the grievanceti It was initially-aubaitted~ chat
the wording of the grievance.ua~s “abstract” and lacking in
particulars. It war further argued that the statement of
particulars provided -to the employer,by letter date~d September
. 16, 1988 (Exhibit ‘A’) did not advance the unioa’s.case in thet
.’ _. ,ylt~demoasttated that the grievance was itrsubstance directed LO
_. .;, i .' : inarbitrable matters relating tO~SppGintm@nt,~ F.omPle?-t,’
(_ :. organisation and assignment. “Specifically, it.vas submitted chat -.-w- - - ,. . . .: --I ------ --.~ .-..._ ._ _~ _._... ~,. __ --. ; the area of staffing and, more particularly, the u.se:::of -‘. +&L-
.~. -~~. ..-----_I: .L-- --. --..---L _...& .._ ,’ unclasrified personnel at the ‘facilitY,~,was .an exelusVe~ 4,
management rig,ht under Sectiqn 18 of The ‘Crown EmploYees _- -2: “. _~ ,T-~.. ...-~.---- ‘. _ ___ I.~., L 1 _... __ R:S.;O;‘lggO,~ Chapter .108,-,as--am~nded,~-_-._1.~ Collective' Bargaining Act;
- __~~ and was- therefora note v.ichin .t.h.e_.jur.isdiction_o~~~ this Board- Its_ .. .--
~. _-. uae-~imilar1y.srgued that we were-vCih6ut JuriSdiCciOqlto-~V5e1)1,..._
sp~poiatmenta to the unclassified service made pursuant to Section
8 of The Public Zervice Act, R.S;O. 1980, Chapter 418, as amended.
The employer lastly suggested that the grievance did not r’eiee
legitimate health and safety concerns. Rather, we were urged to
find that the inclusion of such matters in the grievance vas done
simply :o persuade this Board to assume jurisdiction vhich it did
not otherwise possess. The following authorities were relied on
in support of the employer’s posi:.ion:
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ga kaladay and The Ministry of Industry. ii’lourism, 94/7g;
Aubin and The Winistrj of Correctional Servicer, 1044/85;
Crippa and Tha Winietry of Correctional ScrViCeS, 660186;
Bond and The Hidiatry of Natural Resources, 173/?g;.
Johnnon and Szpakowski and The Ministry of Culture and
Recreation, 72176;
Skale#ky and The Ministry of NatU’ral ReSOUCCeS, 429!,81;
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Mouaeeau’and The Ministry.of Correctional ScrviceoL~11g2/8S;.
Simpson and The Ministry of Correctional Services,~691/gS; .~ .I. ., ,: _..
Warden and The Ministry of CorrectionPl ~e?Vi~Caa, 1.152/87.-,~
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1.n response; the union argued that th.is Board ‘did pdsses_jl_l::‘~-,‘L_-;.
. :;-ths=t-e.s.u.ioi~er~~~V~- to review the:.proprie.~y~of.~app.~.j~t~eots .,:li, .‘~ ’ ‘”
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to the unclassifi’ed ee.rviCe: In this regard, it relied .o’o~‘~.t.~a:‘,.‘~~~ : -.,i.
,j~.;~~_.L.,_avards issued in Beresford and The Winistry.of Government
gerviees,~ 1429/86 and Willey ‘and The Ministry
. .--I.A.L&~~ -y+;*LL _. _ ; :~. : I I_ -- of Revenue, I,. ..;‘: ,. ;:
-_~~ 1972187. In bothvinstence8, the Board concluded that it c’ould-::----
reviev au appointment purportedly made purauant to Section 8 .-1
of,
The Public Service Act. As part of their inquiry, the Board
‘sought to determine vhether the specific appointment was to a
position which fell vithin one of the three groups comprising the
unclassified service as contained in Section 6 of Regulation 881
enected.pursoant to The Public Service Act. It wa.9 also
submitted that the differential treatment accorded CO
uocIassified employees could constitute a breach of Section. lS(1.1
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of The Canadian Charter of Rights and Freedome, if ouch employebs
were not in fact temporary and performed in the same fashion aa
“permanenta”. Lastly, the union denied the euggertion of the
employer that the health and safety issue had been advanced
merely to. persuade the Boar,d to asauma jurisdiction. .To the
contrary, it asserted a real health and safety concern and -, ~.,
..:? I, requested anopportunity to present-. evidence in respect of sam’e.
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., ._.,!, ,.,.I ,:~ By way, of reply, the employer submitted’that the auards in ‘_ ‘~ ?;
‘y: Beresford, and Nillee were incor,rectly decided and. should not be
I .- .‘-- -. .-:~fotlouedi We were informed that, the-former avard~‘was subject to ‘. -
.I::...an~ appJication for judicial rev,,iev. i _._ - -- .--__ I_ -- The representative f%?-Fhe ,. ,,
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employer futther indicated that’ th,eee cases. did not. ConaLder Eha ,,--,;.-
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effect of Sect’ion 30(3.) of The Public Service Act.~ This section -.:.* - :+ --l;..L&.:.-- _ _ ^ ., !. : ,:. serves t,o render’ the co.~llecti~<e’.iagreeuent~ paramount- in any’- -+-r_
-------,conflict vith.-ci. provi~sion~.in._th~_,rcgul,afi~~n, It~~“~-tha~-p~~~~~,~~e_~_
of’ tka~ employer that. Section 6:of .-Regulation. 88l..~.waa~x~~~~- .-
irreconcilable vith Article 3 of the col,lective agreement and wao
for that reason inapplicable;, Perguson and The Ministry of
Industry and Tohrism, 35176 was relied on in Support Of this
argument. It was lastly su,bmitted that the Charter did not ~ap?ly
in this instance ‘as the employees in the classified and’
unclassified services could not be considered as being “Simi,larlY
situated”.
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A.ftar consideri~ng all of the submissions and euthoritiea
presented to UI, the Board finds that we do have the jurisdiction
to proceed with a hearing in this instance. The pertiee have
directed their attention co health and erfety matter8 in Article
18. Article 18(l) reads a~ followa:’
“The Employer ahall continue to make reasonable
provision8 for the safcty,end health of its employees
during the hour8 of their empl~oyment. Ic is l greed
that both the Employer and the Union shall co-operate
to the fullest extent posaible,in the prevention of
accidents and in the rearonable promotion of safety
and health o,f all employees’.” :
Ue have not been persuaded that this,artfcle of~tbe nollentika
agreement is enti;el’y~ i-tia~pplic-able- to’~the;preeent dispute.-~~~he----~-~---~.~--
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union ha8 ae 8e.r tad chat the s~~-ff+ag-prarr~~-~o-f-t-h~e~~~~~I~~-y:e.r~-- --. ---- -~ !i:
‘threate’n the health and safet~y 6f~ emplk~yias ,at the’ Saulf Ste-.- ~-1
--.‘-._ ~“Harie .jail-.-' We-- therefore think.lit...proper. to hear..e.v-iden~ee in ;r-f‘ . .-.
-respect of the .allegation in order to determine if there ir merit
to it. This ir a quest~ion..u_hi.ch_ ,-., in .our, ,Bt,im’atiqn~--ca_nnot be
answered without the presentation and coneideration of relevant
evidence. The fact that staffing and complement may be part of
management rights under Section 18 of The Crown Employees
Collective Bargaining Act is not e bar to the assessment of the
health and safety complaint. In this respect, we concur with the
folloviag comment of the Board in Warden:
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‘IIf the Jhrust of a grievance is a health ‘and
safety issue under Article 16.1, then in our
respectful view that grievance is arbitrable
despite the fact chat the rcsolotion of that
grievance may necessitate an inquiry relating
to the employer’s exercise of management r,ighte.”
(Page 3).
In that case, the Board d,eclinad to hear the grievance because
the wording of same was not indicative of a health and safety
issue; Further, the health and safety~concern was not raised by
the grievor, until the arbitration hearing; That situation is
.clearly distiaguiihable ,froc the matter now before .ns. ‘ger,e, the
health and safely provision of the collective agreement ‘+a~s
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specifically refi'rre? to in the’body of the grievance* Also, the .-i_-- --._ ------ --.- 2..- -,-~-.-----
,..;~.v’i;~’ ge&ral nature of the compla’int v58 d,escribed priot.~to tF.9~ ‘.: ~.,
---L-_: .._ ~__ ii’, hee’ring through the particulara provided io the employer.:
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-.~_. ~. . _, For all df’the above rease,ns, the Board concludes that it ,.~_L. - -:-
may properly proceed to ‘hear- -evidence and argument on. the_hea~lth.~.--
.and safety complaint. Ue are ineliaed to reserve our opinion on
the arguments raised by the employer to the effect that quee:ions
of staffing., complement and appointment fall vithin the exclusive
domain of management’ rights. :We have determined above that these
matters do not deprive us of jurisdiction to learn more about the
alleged health and safety concerns. further, ve hold the opinion
that they bear directly OR the question as to what would be an
appropriate, and legs!., reardy should CL’ ul:inately find 3er.i: to
the union’s complaint. Tk,e loerd will r.ec?d to entertain furzhrr
argument on our remedial jurirdiction eubsequen~r LO thi
presentation of the evidence. Additiontilly, it woyld be
imprudent to 8dd to the debate over the Board’s authority to
review appointments to the unclassified service.vhile the issue
is preaently before the Divisional Court. We there’fore think it
is advisable to delay the ieecheduling of the hearing until after
the court hash- given it6 ‘decisicn.
DA?ED at Wind’sor, Ontario, this ,22nd day of sove~ber , i9ea.
>-,,: .T >:J L’ LA& , .
w. v. Watters, ~Vice.ChairperSon
D. Wallace; Member
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