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HomeMy WebLinkAbout1990-2049.Krajnovis.91-04-18 Decision ONTARIO EMPLOY#S DE LA COURONNE CROWN EMPLOYEES DE CONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 2049/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Krajnovic) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: W. Low Vice-Chairperson J. Carruthers Member F. Collict Member FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE A. Rae EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: March 19, 1991 DECISION The employer has made a request that the Board issue a ruling as to the question of the arbitrability of this grievance prior to proceeding oR the merits if necessary. The Grievor, Mato Krajnovic, is an Air Engineer with the Ministry of Natural Resources at Sault Ste. Marie. His grievance, dated September 24, 1990, is set out as below: Statement of Grievance: Job Discrimination - No training on MNR turbine A/C - no training and development. Settlement Desired: To return to former position of Utility Aircraft Maintenance work; to receive equal treatment and training on turbine aircraft same as everyone else;, equal access to training and development as given to MNR employees. The Board is advised that there are two kinds of engines upon which air engineers work, turbine engines and piston engines. Turbine engines are found on twin otters and piston engines are found on the CL-215 water bomber planes which are a much larger aircraft. We are also advised that work on turbine engines is decreasing at the Sault Ste. Marie location since more of it is done in the field. It appears that the complaint arose because two other employees have been allowed to work more intensively on the turbine aircraft while as of the date of the launching of the grievance, Mr. Krajnovic had been assigned to work more intensively on piston aircraft, namely the water bomber. 2 It is agreed that there is no question of discrimination as contemplated in the Human Rights Code or as contemplated in Article A(1) of the Collective Agreement. It is also agreed that there is no allegation that the employer has made its work assignment or allocation in bad faith. It appears that throughout the grievance procedure culminating in this hearing, the Grievor's complaint was prosecuted as a complaint about training and work assignment. At the pre- hearing, it appears that a passing mention was made that the Grievor had a problem with one of his eyes, and that it was for this reason that he did not like to work on the piston engines because of the requirement that he work on the wings of the aircraft which are in excess of 10 feet from the ground. At the opening of the hearing, the employer was advised that the gravamen of the grievance is that the Grievor has a problem with depth perception and therefore feels that he is imperilled by working on the wings of the water bombers. The twin otters, which are the turbine engined aircraft, are much smaller, and for that reason the Grievor would prefer to work on them. The Union advised the employer that the nature of the case that it was going to present at the arbitration hearing was that the Grievor's health and safety were being imperilled and he was being discriminated against on the basis of handicap by reason of the foregoing. We are asked to rule on the arbitrability of the 3 grievance, but before we are able to do so, we must determine the nature and ambit of the grievance itself. The grievance on its face and as prosecuted up to the pre-hearing stage was, in our view, a grievance as to training and work assignment. Section 18 (1) of the Crown Employees Collective Bargaining Act provides "Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine: (a) Employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) Merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with a bargaining agent and such matters will not be the subject of collective bargaining nor within the jurisdiction of a board. Given the language of the grievance which we find to be unambiguous, and the provisions of s. 18 of the Crown Employees Collective Bargaining Act, we are bound to find that the grievance as set out in writing is not arbitrable. We are obliged, however, to enquire further in light of the fact that the Union today urges upon us that the real gravamen of the grievance is a question of health and safety. The Union asserts that medical information relating to the Grievor's eye 4 condition is in his personnel file, and that there had been a previous grievance which had been settled, also arising out Mr. Krajnovic's eye condition. The Union asserts that the employer should have known that the real complaint in the case had to do with the Grievor's eye and therefore was a health and safety matter. The Union also argues that it has -no obligation to let the employer know the case it has to meet, but may present the grievance on the basis of a health and safety complaint at the arbitration hearing notwithstanding that the grievance is on its face a complaint about work assignment and training and has been pursued as such. The Board is not able to accede to this argument. We are referred to the decision of Arbitrator Knopf in Houghton, 0771/88, where the grievor grieved the assignment of certain job functions to him but at the hearing stage the union attempted to alter the substance of the grievance to assert a health and safety complaint. The Board in Houghton did not permit the grievor in that proceeding to assert what was in essence a new complaint under the aegis of the original grievance, and in our view the policy reason for that ruling is worthy of note. Arbitrator Knopf writes: "It is the opinion of this panel that steps 1 and 2 of the grievance process are extremely important for the proper resolution of complaints. This grievance, as processed, could not give effect to that mechanism of dispute resolution because the substance of the complaint was not revealed to the employer at the crucial early 5 stages. Had it been, we could have been prepared to accept jurisdiction on the health and safety aspect of the grievance and process the case as such. But because it was not raised initially, and because we have no jurisdiction to amend or alter the grievance, we must deal with the grievance as it was framed.'# In the result, because the grievance was a pure assignment issue, the Board ruled that there was no jurisdiction to deal with the matter. we are mindful of the fact that grievances are not frequently drafted by lawyers and therefore not necessarily drafted with great precision. For those reasons, the Board ought not to examine the language of grievances too minutely for technical defects. As Arbitrator Dissanayake wrote in en, 1152/87; "The Board agrees with counsel for the grievor that it is not essential that the grievance refer specifically to a particular article in the Collective Agreement or provision in the Act before it becomes arbitrable. Nor are we unduly concerned that the grievance did not use the phrase "health and safety" and did not articulate a health and safety issue precisely. In that we .recognize that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a grievance merely because of technical defects or imprecise language. All that is required is that the true nature of the grievance must be communicated to the employer. " In the grievance before this Board, however, both the grievance and the remedy sought do not disclose any indication that there is a health and safety concern motivating the complaint. Indeed, from the language of the grievance, it appears unequivocal that what is being sought is a different exercise of the employer's right to allocate work assignments and training than was actually 6 the case. In our view, because the language of the grievance before us cannot reasonably be construed to encompass the health and safety concern which the Union now urges upon this Board as the basis of the grievance and in light of the nature of the grievance as prosecuted thus far, we must dismiss the grievance as filed as unarbitrable. While we are of the view that the grievance must be dismissed, we are mindful that there appears to be a genuine health and safety issue relating to Mr. Krajnovic's continued activities on the wings of the water bomber airplanes. While it is certainly open for Mr. Krajnovic to launch a new grievance, we are unanimously hopeful and of the view that this issue ought not to run its full course to arbitration before a satisfactory resolution is achieved. DATED at Toronto this 18th day of April , 1991. WAILAN LOW Vice-Chairperson J J. CARRUTHERS Member F. COLLICT Mem er