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HomeMy WebLinkAbout1988-0771.Houghton.89-01-23 ONTARIO EMPL OYES DE I.A COURONNE CROW~ f:MPLO¥'~ES DE L'ONTARtO GRIEYANCE C,OMMISSlON DE SETTLEMENT' REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE/T~U~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 F416) 598-0688 0771/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. Houghton) Grievor and The Crown in Right of Ontario IMinistry of Correctional Services) Employer Before: P. Knopf V!ce-Chairperson J. McManus Member A. Nerritt Member For the Grievor: R.P. Stephenson Counsel Gowling & Henderson Barristers and Solicitors For the Employer: G.F.J. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearing: January 10, 1989 DECISION The Union has Drought this grievance on behalf of the grievor, Dale Houghton,. who is a Maintenance Mechanic III at the Miltbrook Correctional Facility.' The grievance, as framed, objects to "the practice of being or]ered to perform the duties of correctional staff." The Employer raised a preliminary objection as to the jurisdiction of this Board asserting that the grievance raises a complaint about job assignment which is exclusively within the prerogative of management and therefore outside the' jurisdiction of the Board. For purposes'of the argument on ~he jurisdictional issue only, the parties agreed to the ~ollowing facts. Prior to February 198~, the grievor was required to "frisk-search" inmates whom he was assigned to supervise. The grievor is a Maintenance Mechanic III whose normal duties involve the maintenance and repair of the fac~ility. He is also responsibla for escorting inmates assigned to his supervision from the work area back to their cells. He is paid a custodial responsibility allowance in accordance with Appendix O of the collective agreement for this additional respons ib i 1 i ry. On February 8, 1988, an Institutional Directive was issued to the maintenance staff whi'ch essentially required that when there were not enough other staff available, the Maintenance Mechanics would also be required to .frisk-search inmates that were not under their direct supervision but were in the same general area. There is an industrial section made up of four shops or areas. At lunch, the affected inmates would be required to return to their cells and also to return at the end' of the day. Before the return to their cells, they are required to be frisk-searched. The grievor is objecting to the assignment of these additional tasks involving inmates who are not under his direct supervision. The Ministry objects to this Board havin~ jurisdiction over the grievance, asserting, that the grievance, as worded, challenges ma.aagement's right to assign additional duti=.s to the grievor. It was argued that under Section 18(1) of the Crown Emp_~o_yees Collective Bar_~ta_i_nin_.q A_c~t, work assignment is the exclusive' function of the Employer and cannot be the subject of collective bargaining or the grievance process. It was said that the gr'ievor is simply complaining about the assignment of additional duties which he had not been require~ to perform prior to February 198B.' It was said that this does not amount to a violation of the collective agreement but is instead an attempt by the grievor to have the Board prevent management from reassigning duties. The Board was referred to the following cases: Warden and Ministry of Correctional Services, GSB F{le 1152/87 released May 17, 1988 (Dissanayake), and Reed and Ministr~ of Correctional Services, GSB File 224/88 released October 20, 1988 {Kates). Counsel for the Union argued that the Board does have jurisdiction to hear this complaint. First, it was said that the work which is the suDj.ect of the complaint is not covered by Appendix 8 of the collective agreement. Further, it was said that as a maintenance worker, the grievor does not receive the kind of training the Correctional Officers receive which would equip him to deal with subduing inmates and dealing with crises. It was said that this created' a risk to the grievor and the Institution. Therefore, the case was essentially a grievance dealing with health and safety issues. It was argued that even though the Employer has the exclusive right to make work assignments, this right is fettered by Article 18(1) of the collective agreement which requires the Employer to continue to make reasonable - 3 - provisions for the safety and health of its employees. Counsel for the Union argued that even though the Grievance as worded did not raise the health and safety issues, the issue was clearly discussed at the pre-hearin9 stage of the arbitration process, thus, the Employer could and should be equipped to deal with this matter in its substance at this stage of the arbitration. Further, we were reminded that the Employer's ability to assign job functions is something that is not within its exclusive prerogative if it violates something else in the collective agreement such as the health and safety provisions or the temporary assignment provisions. Thus, complaints relating to health and safety as they relate to job assignments are arbitrable. It was said that the issue of .health and safety as it was processed would provide this Board with jurisdiction to deal with the issues.- In the alternative, counsel for the Union argued that Section t8(1) of the Crown E_.m.p_l'o_~e_?_s__Collective Bar~9. i__qin_9.q Act should not be read in such a manner that it would produce an absurd result which would 9ire the Employer the right to make any kind.of job assignment to people who are unqualified to perform such jobs. It was said that if there was ever a case where this Board ought to impose a limitation upon the discretion of management, this is one because it 9ives rise to serious concerns of health and safety for the Institution. In reply, the Ministr~;~arGued that the Union is now attempting to alter the substance of the Grievance because Steps 1 and 2 of the grievance focused only on the assignment issue. It was said that Union counsel was simply asking the BoarJ to reword the Grievance to make it something arbitrable. However, it was said that the Board has no o jurisdiction to amend or change the Grievance. It was said that if. this was truly a health and safety issue, it ought to be grieved as such. Similarly, if the Union wants to complain that the employees are not doing work within their - 4 - own classification, then this ought to be raised as a classificatioq grievance. After having considered the positions of both parties, the Board was able to render an oral ruling at the hearin9, '~he following reflects, amplifies and confirms the oral ruling which was issueJ. It is t6e conclusion of the Board that the essence or the substance of the grievance which the Union wishes to pursue is a complaint dealing with health an~J safety. It was apparent from the argument of Union counsel that counsel recognized that as a pure job assignment case, this Board would have no jurisdiction to deal with t~he mattec. However, the 9rievor's concerns were over the health and safety implications of the assignments which were being given to himl However, the wording of the grievance and the processiag of the grievance at Stages 1 and 2 of the grievance process did not reveal this concern to management. In the opinion of this Board, the situation is precisely analogous to the situation before the panel chaired by David Kates in the Reed decision, sup[a_. In that situation, the Kates Board advised the parties: It may very well be that there are health and safety considerations that underlie the 9rievor's complaint. There is nothing suggested herein to prevent a grievance being presented where the appropriate provisions Of the collective agreement alleged to have been violated are expressed. In that regard the parties might deal with the health and safety issue as the main complaint and if the complaint has any substance, might raise remedies that do not infringe upon the governing statute. 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 9ire effect to that mechanism of dispute ~esolution because the substance of the complain~ was not revealed to the Employer at the crucial early stages.. Ha(]' it been, we could have been prepared to accept jurisdiction on the health and safety aspect of the grievance amd process the case as such. But because it was not raised initially,, and because we have no jurisdiction to amend or ai'ter the grievance, we must deal with the grievance as it was frame~. As a pure assignment issue, we lack the jurisdiction to deal with tie matter and therefore these proceedings must be terminated. However, we wish to make additional comments. This panel recoghizes that we have not had t~e benefit of the presentation of the facts or argument on the merits of this case. Therefore, we are clearly unable to comment upon the validity of the substance of the grievance. However, the presence of the grievance itself and the~ nature of the problem which gives rise to the grievance clearly indicates that the grievor, and perhaps others, feel uncomfortable with the present situation from a safety point of view. Regardless of whether there is any merit to their complaint in a collective bargaining sense, it is certainly in the interest of both parties to work together to try to address ~hose serious safety concerns in as speedy a manner as possible. This could possibly be done outside of the grievance procesS. We strongly encourage the parties to explore this. - 6 - However, from a technical point of view, the grievance, as framed and processed, must' be dismissed. DA~ED at Toronto, Ontario this 23rd day of January,. 989. Manus- Member A. Merrit%- MemDer