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HomeMy WebLinkAbout1984-0581.Union.85-01-22IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) - and - Grievor The Crown in Right of Ontario (Finistry of Health) Employer Before: R. L. Kennedy Vice Chairman G. A. Nabi Member G. A. Milley Member For the Grievor: S. Laycock Grievance Officer Grievance Section Ontario Public Service Employees Union For the Employer: P. Mooney Staff Relations Officer Staff Relations Branch Civil Service Commission Hearing: October 16, 1985 -2- INTERIM AWARD The grievance in this matter was filed April 2, 1984 and provides as follows: STATEMENT OF GRIEVANCE: The Union grieves that the employer is not making reasonable provision for the health and safety of its employees employed in the Ministry of Health, OHIP Offices located at 119 King Street, Hamilton, and is in violation of Article 18.1 of the Working Conditions/Employee Benefits Collective Agreement. SETTLEMENT REQUIRED: The Union seeks the correction of those working conditions that are currently contributing to the ill-health experience by employees. These include the following: 1. improved air quality. 2. Abatement of noise levels. 3. provision of properly designed office equipment (a) adjustable desks for VDT use - provided with split table surfaces that can be adjusted independently: (bl appropriately designed hard copy holders: (cl Easily adjustable chairs that can be adjusted safely and easily from a seated position. 4. The provision of ,a properly designed lighting system. 5. The provision of anti-glare, anti-static VDT screen filters; the abolishment of the current quota system and electronic monitoring practices. By agreement between the parties, the evidence and argument on October 16, 1984 were limited to the issue of the arbitrability of the matters raised in the Union grievance. It was the position of the Employer that the Collective Agreement did not deal with the matters covered in the grievance, and that the grievance, therefore, did not raise an alleged breach of the -3- Collective Agreement. It was the Employer's position that the matters referred to in the grievance were specifically dealt with by Union proposals for modification of. the Collective Agreement that had been made in the course of negotiations leading to the Collective Agreement between the parties governing the period January 1, 1982 to December 31, 1983. - Those negotiations had not successfully concluded in agreement, and the matter went to arbitration before a board chaired by Howard D. Brown whose award was issued July 28, 1982. The Employer argued that in that award the Board of Arbitration had specifically refused to grant Union proposals which were equivalent to the relief claimed in the grievance and had referred the matter back to the parties for further consideration. In subsequent negotiations between the parties, the same proposals were made by the Union, and the matters involved are again currently the subject matter of an interest arbitration between these parties, with respect to which hearings have commenced before a Board of Arbitration chaired by Professor Kenneth Swan. In these circumstances, it was the Employer's position that the same matters were not properly arbitrable in the form of the present grievance before the Grievance Settlement Board. The relevant provisions of the Collective Agreement provide as follows: - .4 - ARTICLE 18 - HEALTH AND SAFETY~AND VIDEO DISPLAY 18.1 18.2 18.3 18.4 18.5 18.6 TERMINALS The Employer shall continue to mak,e reasonable provisions for the safety and health~of its employees during the hours of their employment. It is agreed that both the .Employer and.the Union shall co-operate to the fullest extent possible in the prevention-of.acc.idents and in the reasonable promotion of safety and health of all employees. The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees. The purchase of safety shoes or boots for on-the-job protection of the purchaser shall be subsidized as per the applicable practice in each ministry. The current practices relating to the supply and maintenance of apparel for employees shall continue during the term of this Agreement, subject to any changes which may be entered into between the parties at the local or ministry level. After each hour of continuous operation of a VDT, a VDT operator shall be relieved of such duties for a period of ten (10). minutes. At the beginning of assignment to a VDT and annually thereafter, a VDT operator who is regularly required to operate a VDT for two (2) hours or more per day shall be required to undergo an eye examination by an optometrist who is qualified to conduct the following tests: (a) unaided visual acuity (letter chart test) (b) refractive findings Cc) corrected visual acuity (d) amplitude accommodation (e) suppression (f) muscle balance (near, one metre, distant) (g) slit lamp biomicroscopy . The cost of the eye examination, not to exceed the CHIP fee schedule for such examinations, shall be borne by the Employer, and the VDT operator shall authorize release of a copy of the examination report to the Employer. 18.7.1 A pregnant VDT operator may request reassignment from VDT duties for the,remainder of her pregnancy by forwarding a written request to the Employer together with a certificate from a legally qualified medical practitioner certifying that she is pregnant. 'The prior Collective Agreement between the parties was for the period January 1, 1980 to December 31, 1981, and Article 18 in that Collective Agreement included only the first four subsections above referred to. Subsections 18.5, 18.6 and 18.7 were added to the Collective Agreement as a result of the Brown award previously referred to. It is the Union position that the grievance before this board comes within the language of Article 18.1 and is not simply a duplication of matter; and issues which are presently being heard by the'swan Board. It is the Union position that the grievance goes considerably beyond the narrow matter of VDT use and deals with matters of air quality, noise and lighting applicable to all employees in the Hamilton office. We were advised by the Union that of the total of 191 employees involved in the Hamilton office, only 40 operate VDT's, and the complaints raised by the grievance apply to all 191 employees. It is substantially the Union's ^ -6- position that under the provisions of Article 18.1 it is the obligation of the Employer to provide a healthy and safe working environment and that in the Hamilton office this has not been done. It is, therefore, the Union position that this board does have jurisdiction to embark upon a consideration of the merits of those allegations. Part of the Employer's argument rested on the premise that Article 18.1 constituted only a statement of principle that was a preamble to the more substantive clauses of the article that followed. The argument was that Article 18.1 had no substantive viability on its own. Such a contention is not supported by prior decisions of this board. The identical. argument was raised on behalf of the Employer in Gonneau 227/81 (Teplitsky) wherein in response to that argument, the Vice-Chairman stated at Page 6 of the award: I can find no policy reason that would require us to ignore the plain meaning of 18.1. to prevent, a grievor access to the informal arbitration procedure as a means of redressing a breach by the Employer of such a provision. If parties insert language into a Collective Agreement, their expectation must be that it will have meaning, and that a breach, if damage results, will be enforced through the grievance procedure. In Gillies 339/82 (Salt-man) the Vice-Chairman dealt with the meaning of Article 18.1 in a context quite equivalent to that -7- which is before us. At Page 5 of the award the following is stated: Article 18.1 is a general provision which requires the Employer to continue to~make "reasonable provisions for the health and safety" of its employees. The Collective Agreement gives no guidance as to the meaning of "reasonable provisions for the health and safety". It would appear, however, that Article 18.1 requires at a minimum compliance with the provisions of the Occupational Health and Safety Act, R.S.O. 1980 c. 321 dealing with the Employer's obligations to provide for the health and safety of its employees. As a corollary, it seems that the Employer would be in violation of Article 18.1 if it contravened the Occupational Health and Safety Act, Article 18.1 also imposes obligations which are not covered by the Occupational Health and Safety Act. For further authority in this area, reference may be made to Davidson 595/80 (Samuels). In the course of.argument, counsel for the Employer raised an alternative argument that Article 18.1 was ambiguous in that the parties were in substance putting forward two conflicting but plausible interpretations thereof. He argued that the Collective Agreement gave no guidance as to the meaning of reasonable in the context of Article 18.1 and that the Union case really rested on what was an ambiguity in the Collective Agreement. He argued that the parties could not have intended that Article 18.1 continue the sort of measures now being sought by the Union in view of the specific sections which had -8- been added to Article 18. We do not agree that the specific sections added by the Brown award can be considered to detract from substantive rights under the pre-existing sections. We do not find anything in the language of Article 18.1 that can be considered patently ambiguous, and of course at this stage we have no evidence upon which to base any argument of latent ambiguity. We think the language is clear and unambiguous in providing a specific requirement that the Employer make reasonable provisions for the safety and health of its employees during the hours of their employment. Neither the fact that such an obligation may indeed be very wide and onerous, nor the fact that the determination of whether that obligation has been met may in some circumstances prove quite difficult for a Board of Arbitration, will have the effect of rendering such language ambiguous. It is the view of this board, however, that the arguments of the Employer relating to the portion of the grievance claiming relief in the area of VDT equipment and operation are well founded. In that regard we have specific reference to the portions of the Settlement Required numbered 3 and 5. The language of those two portions of the grievance track identical language that appears in the Union proposals both to the Brown Board in 1982 and to the Swan Board that is currently in the process of resolving the terms and conditions of ,. 2 - g -’ employment for the period commencing January 1, 1984. Those matters are dealt with in the Brown award at Pages 6 and 7 in the following terms: The Union made proposals concerning this area in the remedies of rest breaks, machine monitoring, machine design, eye care, radiation protection, including effect on pregnant employees. At the outset, it is clear to this board that both parties are concerned with the effect on persons using VDT's, which are required in the Employer's operation. It is noted that a task forces has been set up by the Ministry of Labour in 1981 to study the possible health hazards of VDT's and to evaluate the information concerning hazards in the operation of such machines. There also appears to be a distinct dispute amongst informed persons in this area concerning the possibility of hazardous effects of the use of these machines...... Having considered the submissions, it is the board's finding that there are three specific areas where this board can and finds necessary to include, for the purposes of the Collective Agreement, which are, rest breaks, eye care and pregnant employees. All of the other'concerns and matters at issue, referred to by the Union, under this heading, will be remitted to the Joint Consultation Committee of the parties to determine. We direct that such Committee meet within three months of the date of the release of this award to the parties, and continue to meet as required, in order to finalize appropriate measures to deal with the health and safety of employees who are required to use VDT's...... Should the parties be unable to conclude an agreement through the Joint Consultation Committee as directed above, it may be necessary to submit the issue to a subsequent board of arbitration. The subsequent Board of Arbitration envisaged in the Brown award would, in our view, be a subsequent Board of Arbitration in the context of an interest arbitration, and that has indeed - 10 - taken place in the submission of these issues to the Swan board. In those circumstances we consider it inappropriate to review the same issues in the context of grievance arbitration. With respect to the electronic monitoring practices referred to in Section 5 of the grievance, we would further note that prior to the Brown award, a panel of the Ontario Public Service Labour Relations Tribunal chaired by 0. B. Shime, Q.C. held specifically that such practices came within the Employer's exclusive function to determine the work methods and procedures as well as its exclusive function regarding appraisal. That portion of the Union proposal was, therefore,' not permitted to proceed to interest arbitration. The Shime award was issued May 17, 1982, and in the view of this board, if the matter is not properly the subject matter of interest arbitration, it is equally inappropriate to be-dealt with in the context of a grievance arbitration. In summary, therefore, it is our view that under Article 18.1 the Employer has an obligation to make reasonable provisions for the safety and health of its employees during the hours of their employment. The language of the grievance raises the allegation on the part of the Union that that obligation has not been met with respect to the physical condition of the Ministry's premises at 119 King Street in Hamilton. Specifically the grievance requests relief in the - 11 - areas of air quality, noise level and the provision of proper lighting. It is the Union allegation that these matters apply to all employees in the office and not simply those operating VDT's. It is our view that if the Union position on the physical conditions is correct, it may well be that the Employer has not met its obligation under Article 18.1, and the merits of those allegations are properly matters to be reviewed by this board in the context of a grievance arbitration. As we have previously stated, however, we do not consider that the relief requested in Sections 3 and 5 are appropriately considered in such a context, and we would, therefore, exclude such matters from the scope of this grievance. Their ultimate resolution will be a matter for determination in the award that will be issued by the board chaired by Professor Swan. In the result, the Employer's objection to arbitrability succeeds to the extent that the portions of the grievance claiming relief as enumerated in Sections 3 and 5 of the grievance are found to be inarbitrable in the context of this grievance. The balance of the grievance and the relief sought will proceed to a hearing on the merits on a date to be fixed by the Registrar. Since we have in no way embarked upon a - 12 - consideration of the merits , the matter.could proceed before a panel of this board differently constituted, DATED this 22nd day of January, 1985.. / //&, ,6 Ross L. Kennedy, / Yice Chairman "I dissent" see attached) G. A. Nabi - Member 6L54,, G. J. Milley - Member DISSENT The Union has brought forth a grievance on behalf of a number of employees of the Ministry of Health who worked in the Hamilton OHIP office. Their complaint is that the employer has not complied with Article 18.1 of the Collective Agreement in that, they have failed to provide a healthy and safe working environment for these employees. The issue is whether this grievance is arbitrable and specifically whether we can provide the remedy required by the Union in each of the five (5) areas that they specify. These include: 1. Improved air quality: 2. Abatement of noise levels; 3. Provision of properly designed office equip- ment; 4. Provision of properly designed light system; 5. Provision of certain equipment for VDT's and the accompanying abolishment of the quota system and electronic surveillance practices being carried on by the employer(as alleged). My colleagues in the majority suggest in their aw,ard that the grievance and the relief sought are arbitrable except for matters that deal with VDT's and specifically items 3 and 5 of the relief sought by the Union. It is from this decision that I must regretfully dissent. Article 18.1 of the Collective Agreement is a lengthy and comprehensive clause dealing with health and safety. My examination of the facts that we have been 'given, indicate that the Union's grievance would seem to fall well within the provisions of this Article. The Collective Agreement is valid and the grievance appears to be proper in every respect and r% T 2 - ~- quite timely. The objection to arbitrability as advanced by the employer is that certain matters that we would deal with in hearing the evidence and subsequently in our award are also matters which are concurrently being dealt with by Pro- fessor K.P. Swan who is the Chairman of a Board of Interest Arbitration. The employer has apparently convinced my friends in the majority that for this reason, and no other, we should not seize jurisdiction and deal with the grievance as advanced by the Union. However, I cannot see or justify this Board!s failure to take jurisdiction over issues that are properly arbitrable. I fail to see why this panel of the Grievance Settlement Board and the interest arbitrator cannot have concurrent jurisdiction over the issues in dispute. If this conflict cannot be resolved in any other way, I would take the position that it is the interest arbitrator who should decline jurisdiction in favour of this Board of Arbitration. Bights arbitrators take their jurisdiction generally, from the Collective Agreement as we do in this case. However, we are authorized as well to take jurisdiction by virtue of the Crowns Employees Collective Bargainin~g Act. On my reading of the Collective Agreement, we have clear and proper authority to hear this matter in its entirety and to render a decision based on the issues that are currently before us. There have been situations in this Province where Boards of Arbitration have found themselves in a situation where they have concurrent jurisdiction with an administrative agency. However, it has now been determined that where the subject matter of a grievance is also the subject matter of * c -3- a complaint before some administrative agency that the Rights arbitrator is not precluded from making a determination in the dispute. In fact, it is currently accepted and settled that the Ontario Labour Relations Board and a Board of Arbitration can have concurrent jurisdiction to resolve the question of whether or not a person is an employee: (see Canadian Industries Limited and International,Union of District 50, Allied and Technical Workers of United States and Canada, Local 13328 (1972), 27 D.L.R. (3d) 387, 72 C.L.L.C. 14,130 (Ont. C.A.)). As a further note on this point it is well known that the O.L.R.B. in many situations, deffers the question to a Board of Arbitra- tion where concurrent jurisdiction exists: (see Valdi Incor- porated, 80 C.L.C. 16,046 (Adams)). It occurs to me upon reading the Collective Agreement that we are required to seize jurisdiction when it is available to us and resolve all the issues in dispute between the parties. In my view, declining jurisdiction because these matters are currently before an interest arbitrator would seem to be an impractical way to approach this problem because the parties have no control over the interest arbitrator who may simply choose not to provide any answer to the issue in his award. If this turns out to be the case with the issues raised by the parties in this grievance, then two Boards of Arbitration (although formed for different purposes), would have failed to resolve the issues for which the parties are entitled to an answer. ,I would have thought that the least we could have done in this situation is reserve our decision on the question of relief sought by the Union in items 3 and 5 of 2 - 4 - of their requested remedy to see whether the interest arbitrator has satisfactorily resolved or even dealt with the issues that are in the concurrent jurisdiction of the two Boards. The issues raised by this grievance are important and amount to serious allegations by the Union. What is at issue is not merely a question that can be settled in terms of dollars. The issue concerns the health and safety of the complainant employees and it is my opinion that their allega- tions should be put to the'evidenciary test and that this panel of the Board should give them a full hearing in which to state their case and to hear the employer's response. We should not treat this matter lightly as the consequences could be serious illness suffered by employees who are exercising their legal right in the appropriate forum to seek redress. VDT operators cannot be distinguished from other employees by the Grievance Settlement Board when we are in- terpreting the provisions of Article 18.1. VDT operators are as entitled as any other employee to seek relief under Article 18.1 and it is my opinion that by prohibiting the grievors in this case from raising VDT related complaints the majority are not giving a reasonable interpretation to the provisions of the Collective Agreement. The majority's award is unreasonable in this sense because there is no ambiguous or other language that would lead us to conclude that VDT operators cannot raise complaints about their working conditions and environ- ment, except the management right's clause deemed into the agreement by virtue of Section 18(l) of the Crown Employees Collective Bargaining Act, as amended. Furthermore, the 7~ ~..T -5 - employees concerned and on whose behalf the Union raises this. grievance, cannot be held responsible for the coincidental occurrence of a Board of Interest Arbitration sitting to hear proposals to amend Articles of the Collective Agreement currently in dispute before this Board. The employees form a small part of a rather large and province wide Union which might be accused of acting irresponsibly if it held back on negotiating on behalf of all of their members so that a few of their members could process their grievance in an unhindered fashion. I draw this to the reader's attention because it would appear from the majority award that if the parties had not submitted the very same issue to an interest arbitrator then, this panel of the Grievance Settlement Board would have no reservations about dealing with the issues at hand. Vice-Chairman M. Saltman of this Board pointed out in Re Gillies, 339/82, that "it would appear, however, that Article 18.1 requires at a minimum compliance with the pro- visions of the Occupational Health and Safety Act, R.S.O. 1980, c. 321, dealing with the employer's obligations to provide for the health and safety of its employees." If that is the case it seems to me that we as arbitrators have a duty to apply the law as thoroughly and as correctly as we are able to do and since these employees are indirectly alleging that there may not be compliance with the law in Ontario, I.would be of the opinion that we are duty bound to hear their argument and the employer's response in this respect. As part of their reasoning, the majority state that - b - since the Brown award directs the parties to conclude an agree- ment through joint consultation or submit the issue to a sub- sequent Board of Arbitration that it would be "inappropriate" for this Board to "review the same issues in the context of grievance arbitration". I cannot agree with my colleagues in making this observation or reaching that conclusion be- cause there is nothing to prevent the parties from seeking re- dress before the Board of (Rights) Arbitration in addition to all of the other remedies that they have at hand. Further- more, since it is a well founded principal with this Eoard at least, that the doctrine of stare decisis does not apply I cannot agree that simply because the Ontario Public Ser- vice Labour Relations Tribunal held that the practice of electronic monitoring comes within the exclusive function of the employer and therefore was not arbitrable, that this is an issue that should concerns us. Perhaps, it woul<.be of weight in an argument that the matter was not arbitrable but I fail to see how it cannot be arbitrable simply because it was not properly the subject matter of an interest arbitration. Furthermore, I have been unable to find any relevant case law that would support such a theory. In conclusion, I must say that I have found all of the conditions precedent necessary in this grievance to allow us to take jurisdiction over all of the issues raised by the Union and I would therefore allow the grievance to proceed in its entirety. It is my view that failing to take jurisdiction is as serious an error as exceed- ing jurisdiction and simply protracts litigation where it is unnecessary to do so. One of the primary functions of the - 7 - Grievance Settlement Board is to resolve differences between the parties arising from the interpretation, application, administration or alleged contravention of the agreement. I note that in Section 19.1 of the Crown Employee's Collective Bargaining Act, R.S.O. 1980, c. 108, that we are required to give '... full opportunity to the parties to present their evidence and to make their submissions . ..". St seems to me that a far more practical way of assisting these parties in interpreting their Collective Agreement is to have that done here in an expeditious fashion, than to turn the grievors away simply because their Union has also raised the issue in another forum. All of which is respectfully submitted. ,$,&L L,- :g n&s Gordon A. Nabi.