HomeMy WebLinkAboutMcCarville 92-04-01 Algonquin College
(Hereinafter referred to as "the college")
- and -
Ontario Public Service Employees Union
(Hereinafter referred to as "the trade union")
And In the Matter of Article 6.2.7 of the collective agreement
OPSEU #90D925
Before: D.~. Kates, Chairman
Jane Grimwood, Union Nominee
Richard O'Connor, College Nominee
Appearing for the Union: Chris Paliare, Counsel
Appearing for the College: Lynn Thompson, COunsel
Beard at Ottawa, Ontario, on April 30, October 15, 1991 and January
15, 1992.
Decision
This grievance pertains ostensibly to the College's alleged
denial of overtime opportunities to its Food and Beverage
Department employees contrary to Article 6.2.7 of the collective
agreement. The relevant portion of that provision reads as
follows:
...The Colleges agree to attempt to distribute available
overtime work as equitably as practicable amongst qualified
employees in the work groups in which overtime work is
required...
The grievor's complaint is not that he was not offered
overtime work as the occasion arose. Rather, Mr. McCarville's
complaint pertains to the unreasonable work-related qualification
imposed upon him as a condition for his acceptance of such overtime
opportunities. More precisely, the grievor alleges that the
College imposes upon its Food and Beverage staff the requirement
that they engage in an "unsafe" work function that is contrary to
The Occupational Health and Safety Act R.S.O. 1980 C 321, as
amended. Accordingly, so long as the College insisted that the
grievor participate in these allegedly unsafe tasks he has refused
to accept overtime work. In that context the grievor charges that
the College's offers of overtime impose an unreasonable condition
that renders those entitlements ineffectual and contrary to the
provisions of the collective agreement.
By operation of Article 13.1 of the collective agreement, "The
parties acknowledge the application of The Occupational Health and
Safety Act" The College allowed that the Board held jurisdiction
to inquire into and resolve the grievor's allegation of a breach of
2
the Act insofar as it served to dispose of his overtime complaint.
The College had very serious reservations with respect to our
remedial jurisdiction to cure the unsafe work practice should the
grievor's allegations be sustained. In any event, we shall defer
discussion of the Act and'its impact on our decision to settle this
grievance until later in this award.
The facts are not controversial. The grievor is engaged as "a
sous-chef" in the College's Food and Beverage Department. One
~unction performed by the Food and Beverage Department is the
catering of parties, banquets and like functions on the College's
four campuses. Since these events normally occur during off-duty
hours (ie., evenings and weekends) opportunities for overtime are
offered to its Food and Beverage staff "as equitably as
practicable" in accordance with Article 6.2.7 of the collective
agreement.
It is common ground that at these events the College from time
to time dresses up the occasion by placing ice sculptures of
various sizes and shapes on the banquet tables. Several of these
ice sculptures may be used at a given event. Some of them can
weigh as much as one hundred and sixty pounds and may be shaped in
a "top heavy" fashion. Obviously as time elapses the ice
sculptures become slippery as they melt. There is no dispute that
the process "of erecting and dismantling" the ice sculptures at the
banquet area is not without risk. For that reason the College has
insisted upon strict compliance with its instructions with respect
to the manner in which employees are to engage in that process. It
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suffices to say, the grievor insists that irrespective of the
College's directives the process of erecting and dismantling the
ice sculptures is "unsafe". And, more precisely, the grievor
alleges that the College in doing nothing more to reduce the hazard
(for example by securing a mechanism for lifting the ice sculpture
from dolly to table) it has violated Section 14(2)(g) of the Act
which reads as follows:
(2) Without limiting the strict duty imposed by subsection i,
an employee shall,
(g) take every precaution reasonable in the circumstances
for the protection of a worker; .
The grievor has been employed by the College in its Food and
Beverage Department for approximately 20 years. He has
participated in the employer's practice of "'erecting and
dismantling" ice sculptures for approximately 17 years. Several
improvements to that practice have been introduced during that
period. One specific example of an improvement pertained to the
moving of the ice sculpture to and from the kitchen area on a four
wheel wagon to a twowheel dolly with an edged lip. Approximately
1 1/2 years prior to the incident that resulted in the instant
grievance (dated October 1, 1990), the grievor reported his concern
to his superiors that the procedure was unsafe. Mr. Dash, Manager,
Food and Beverage Department, advised that he made inquiry of two
hotels in the Ottawa area and satisfied himself that the procedures
engaged in by the College was consistent with wh~t he perceived to
be "industry practice". The evidence did not establish that the
grievor was advised of the results of Mr. Dash's investigation.
4
It suffices to say that the grievor continued for 1 1/2 years
prior to his grievance to accept overtime opportunities
irrespective of the perceived risks that were complained about.
Neither management nor the grievor sought to invoke the procedures
prescribed by the Act for the investigation and r~solution of
occupational health and safety disPutes. Nor is it fair to say
that during this period did there occur any triggering event or
incident such as an accident or an act of alleged insubordination
(ie. refusal) that would have warranted either party to have
recourse to the College's Health and Safety Committee and/or to
summoning a Ministry investigator.
The grievor accepted an overtime opportunity for an event
scheduled for Saturday, September 15, 1990. At that event he was
asked by the Assistant Manager, Food and Beverage Department, Mr.
Gordon Esnard, to assist in taking an ice sculpture from the
freezer in the kitchen area to the banquet room and to engage in
lifting the ice sculpture onto a table. The grievor resolved on
this occasion to take a stand, ge refused to participate in the
practice he held to be unsafe. No discipline in the sense of a
warning or threat or directive to leave the work premises resulted.
Rather, another employee was summoned to assist in the procedure.
In describing the procedure in the banquet area we are
assuming the most hazardous conditions with respect to the erecting
and the dismantling of a top heavy', slippery ice sculpture that
weighs approximately 160 pounds. The employer's practice is to
engage two employees to move the finished ice sculpture from the
5
kitchen area to the banquet room. In the kitchen area, the ice
sculpture is lifted onto the lip of a two wheel dolly and pushed by
the one person handling the dolly while the other assists in
guiding it to the desired destination. At the banquet table a
third person assists the other two employees ih lifting and placing
the ice sculpture on the table. From the dolly the ice sculpture
is lifted up by the three employees to table level. A towel or
table cloth is wrapped around the body of the sculpture so as to
ensure "a grip" with the one hand while the other hand is placed on
the "indented" area at the bottom of the sculpture. The indenture
is purposely made by the chef to serve as a handle. After the
three employees lift the sculpture from the dolly to table level it
is transferred onto a "pan" resting on the banquet table. The
focus of the grievor's safety concern is related to the transfer
action onto the banquet table. That procedure entailed leaning the
sculpture against the one employee while the other two placed it
over the edge of a pan where it is laid to rest on the table. The
one employee guides the sculpture while the others complete the
transfer.
On the Monday morning following the incident the grievor met
in the office of Mr. Dash with Mr. Esnard in attendance. At that
meeting the grievor reiterated his concerns about the safety of the
aforesaid procedure. Mr. Dash explained that he ~ras of the opinion
that the procedure (based on his previous investigations) was
consistent with industry practice for the ~erecting and
dismantling" of ice sculptures. The grievor insisted nonetheless
6
that the College ought not to be tied to industry practice but
should become the "forerunner" in accomplishing improvement to that
practice.
The grievor was advised that he was expected to assist in the
procedure as a condition to performing overtime work. The grievor
refused to accept that condition and thereby has never worked
overtime (save and except for a period when personal reasons
prevailed) on account of that concern. In short, the grievor took
a stand and grieved his loss of overtime opportunities by reason of
the employer's .violation of the Act. After the meeting Mr. Dash
instructed Mr. Esnard to investigate further the prevailing
practices engaged in b~ other facilities in the Ottawa area. Mr.
Esnard telephoned the chefs at the Westin ~otel and the National
Arts Centre to make inquiries. Based on the information he
received Mr. Esnard was not prompted to suggest the making of any
improvements to the College's current procedure.
Mr. Esnard also contacted a supplier to inquire into whether
there existed a mechanism to assist in the lifting component of
erecting the ice sculpture. He was advised of the existence of a
mechanical dolly that might assist (in the manner of an elevator)
the lifting process. The problem that was discerned pertained to
the limitations of the dolly in not lifting the sculpture to table
level. And in any event, that equipment would provide no
assistance in the transfer aspect of the procedure that constituted
the focus of the grievor's safety concern. In short, the cost of
purchasing this mechanism ($1,000.00+) was deemed to be unworthy of
7
its dubious advantage in alleviating the grievor's-principal
concern.
We would note that there was a conflict in the parties'
evidence as to whether Mr. Dash at any time reported these findings
about the mechanical dolly to Mr. McCarville.
The grievor could point to no incident during his lengthy
career involving an employee in the transfer process where there
might be perceived to have occurred an unacceptable safety risk.
Indeed, no incident appeared to occur at any time material "to his
taking a stand" that would have incited that concern nor had the
College introduced a new or changed procedure in the erecting and
dismantling of the sculptures that might have alerted the grievor
to a risk to his safety.
The trade union described three incidents where employees had
reason to complain of a potential hazard to their safety. In the
one incident an ice sculpture tipped off a wagon while being pushed
by an employee on a four (4) wheel dolley. No injury resulted.
But following its occurrence the employer introduced the two wheel
dolly with the edged lip which the parties agreed constituted a
marked improvement.
The same employee complained that on one occasion due to the
awkwardness of lifting a top heavy ice sculpture he had wrenched
his back. He reported the incident to management. No loss of work
time resulted nor did a compensation claim arise out of that
incident. Moreover, it was disclosed during cross-examination that
the employee failed to follow prescribed procedures at the time of
8
the incident in that only one colleague (where two are required)
assisted him in the lifting and transfer exercise.
Another employee complained that he "pinched" his fingers
du~ing the "transfer" component of the procedure. As the ice
sculpture was placed in the pan on top of the banquet table his
'fingers were "squeezed". Nothing arose out of the incident that
warranted the employee having recourse to medical attention or to
time off work.
The employer called its executive chef, Mr. R. Forget as a
witness. He talked about his experiences in engaging in the
"erecting and dismantling" procedure. Mr. Forget "sculpts" the ice
figures that decorate the banquet tables from 250 pound blocks of
ice. He is a member of the Ottawa-Hull Ice Carving Society. He
testified that during the course of his ten years of experience
that he has engaged in ice carving (which included his taking a
training course in 1984 an safety procedure) he was not aware of
the existence of any practice or mechanism that deviated from the
practices engaged in by the College.
Mr. Ikno Kanbayashi was also called to give testimony. He has
once engaged in ice sculpting at the Chateau Laurier Hotel and
Westin Hotel in Ottawa. He is presently employed as a chef at
River Meade Golf Club. He holds the position of President of the
Ottawa-Hull Ice Carving Association. He described the recommended
procedures for moving, lifting and dismantling ice sculptures while
in the employ of these three facilities. The procedures that he
described, depending on the size and weight of the ice sculptures,
9
did not differ from the procedures engaged in by the College.
Moreover, Mr. Kanbayashi was also not aware of any mechanical
devices that might assist in the moving and lifting of these ice
sculptures.
During argument the parties dwelled upon the application and
the relevancy of The Occupational ~ealth and Safety Act to the
circumstances of the instant case. In doing so, particular
attention was focused upon the arbitral jurisprudence of the
Ontario Labour Relations Board with respect to alleged unwarranted
disciplinary reprisals to otherwise bona fide refusals by employees
to engage in allegedly hazardous work procedures. A "two tiered"
system under the Act with respect to the investigation and
discernment of a genuine safety concern in those procedures was
described (see Section 23(4) and (6) of the Act). The first tiered
requirement of the Act pertained to ascertaining the "genuineness"
of the employee's concern (subjective) who has been disciplined or
assessed a penalty with respect to his initial refusal to undertake
a work related exercise. Because there was no prejudicial action
taken against the grievor in the instant case (that could be
characterized as a "reprisal") following Mr. McCarville's initial
refusal on September 15, 1990 (ie., he was accommodated without
loss of overtime) the employer submitted (without conceding) that
the bona fides of the grievor's initial refusal on that occasion
was an academic consideration (see Re: Beachvil~me Ltd. and Enerq¥
and Chemical Workers Union, Local 32 (1981) 1 LAC (3d) 22 (Palmer)
at p. 27).
10
What was significant from the employer's perspective was that
the grievor's continued refusal to accept overtime opportunities
thereafter would have to be based on a reasonable (ie., objective)
belief that the practice was unsafe. And having regard to the
second tiered requirement of the Act the College relied exclusively
upon its longstanding uninterrupted practice of approximately
fourteen years duration where no serious incident occurred that
would likely cause a reasonable employee to be concerned about his
safety. In that context, the College argued that there occurred no
recent culminating incident or no introduction of any significant
change to the practice that ought to have triggered the grievor's
misgivings. Moreover, aside from the grievor, no other employee
who has participated in the practice has seen fit to complain or to
invoke the protections of the Act. In short, the College plaCed
the evidentiary burden squarely upon the trade union to meet the
challenge of demonstrating by objective evidence that the College's
long standing practice was unsafe (see Re: Crossle¥ Carpet Mills
Ltd. and Canadian Brotherhood of Railway TransDort and General
Workers, Local 612 (1989) 3 LAC (4D) 199 (Darby) at p. 216 and Re
Eastern Steelcastinq and United Steelworkers Local 8794 (1981) 28
LAC (2d) (310 (Adell) at p. 312).
To this end, the College argued that no expert evidence was
adduced (for example in ergonomics) by the trade union to discredit
the College's practice. In this vein, the College referred the
Board to several decisions where, in "reprisal" situations, the
complainant either relied upon expert evidence or Labour Ministry
11
studies and reports to support its claim that the employer's
reprisals were unwarranted by reason of a reasonable belief that
the impugned practice was unsafe. In. short, the grievor's
allegation with respect to the unacceptable safety risk of the
College's procedure in erecting and dismantling ice sculptures
should be rejected as unproven (see Re: Westin Hotel and Hotel,
Restaurant and Cafeteria EmDloyee's Union, Local 75 (1983) 11 LAC
(3d) 1 (Egan) at pp. 6-7).
In that regard, this Board is compelled to agree with the
College's characterization of the principal issue in this case.
The trade union asserted having regard to the evidence that was
adduced that "common sense" considerations warranted the conclusion
that the College's practice was unsafe. That is to say, merely the
description of the College's practice as set out herein ought to
have reasonably established a safety concern. Accordingly, that
concern should have prompted the College pursuant to the Act either
to summon its Health and Safety Committee and/or a Ministry
inspector to investigate the validity of the practice. Failing
that the College must be seen to be in violation of the Act's
objective in compelling the College to furnish a safe work
environment.
Moreover, it was also argued that, irrespective of the current
practice, the College failed "to take every precaution reasonable
in the circumstances" for the protection of its Food and Beverage
staff. The trade union made specific reference in that regard to
the College's refusal to introduce the mechanical two wheel dolly
12
with the lifting device into the work place.
None of the OLRB jurisprudence referred to us by the trade
union describing situations where allegations of an unsafe work
environment resulted in positive findings in favour of the
complainant employee who was a victim of employer reprisal for
alleged acts of insubordination pertained to challenges of a long
standing employer work practice. They pertained either to the
introduction of new or different work procedures (see: Re Bill's
Country Meats Ltd. (1984) OLRB Rep. 1549); or to incidents of
variations from existing work practices (see: Re Firestone Canada
Ltd. (1985) OLRB Rep 1044; Re Boston Insulated Wire & Cable Co.
(1990) OLRB Rep. 1235). Indeed, this Board is not entirely
convinced in the circumstances that have been described that the
grievor has been subjected to any employer "reprisal" or penalty
for his refusal to accept overtime.
As hitherto indicated the burden of proof rests with the
grievor to demonstrate by reasonable and convincing evidence that
the College's administration of the overtime provisions of the
collective agreement is unreasonable by virtue of its insistence on
an unsafe work practice. In our view at no time has the grievor
incurred any "penalty" as defined by the Act during the period that
preceded his grievance. The grievor with impunity continues as is
his entitlement to voluntarily refuse to work overtime
opportunities on account of his alleged misgivings (see Section
24(1) of the Act).
The only evidence before the Board that could be interpreted
13
as a "threat" of reprisal by the College occurred during Mr. Dash's
testimony. He indicated that should the College succeed in this
grievance and should the occasion arise during regular working
hours where the grievor refused to engage or participate in the
practice he would recommend as an initial censure a letter of
reprimand (see Section 24(1)(6) of the Act). And presumably,
thereafter, for each subsequent refusal the severity of the
disciplinary penalty would likely escalate. In short, the grievor
is presently "on notice" that he faces the "threat" of discipline
should he defy undertaking the College's procedures during regular
working hours (which we understand to be rare). Nothing we say
herein is intended to deter the grievor from having recourse to the
protections of the Act merely because on evidentiary grounds in
these arbitration proceedings we have not been convinced that the
impugned practice is unsafe.
The trade union criticized the employer for failing to make
use of the procedures available under the Act to dispel any doubt
with respect to the safety of its practice. Instead it chose to
rest on the comfort of its longstanding past practice as a defence.
In response to that criticism we would only suggest that nothing
occurred or was proven to have occurred that ought to have raised
in the College's mind any reason for doubt. By the same token the
grievor, despite the College's perceived indiffezence, also could
have had recourse to the same procedures, ie., the health and
safety committee or a Ministry inspector when he first raised the
matter some 1 1/2 years prior to the September 15, 1990, event.
14
Instead he'continued to accept overtime on the same basis as he had
for the previous 14 years until "he took a stand" (see Section
23(6) of the Act).
Without appropriate and objective proof we reject the trade
union's submission that mere "common sense" ought to serve as an
effective instrument for successfully challenging the employer's
practice as being unsafe. In our view recourse to "common sense"
is simply another way for expresing an employee's genuine
subjective belief or concern about a hazardous working condition.
As indicated at the hearing if a new employee who is given for the
first time the responsibility for engaging in the College's
practice and has legitimate misgivings then that employee has
properly used his "common sense" to refuse to engage in that
practice until his concerns are assuaged.
At that juncture if not assuaged the test for determining the
safety of a particular employer work practice, particularly having
regard to the duration of the College's practice, is through the
persuasive objective opinion of an expert. And recourse to a
Ministry inspection is the one effective way prescribed by the Act
for securing such necessary and objective information. In short,
we hold that the grievor on the evidence adduced has not satisfied
the burden of proving that the employer's practice is unsafe.
Moreover, we are further satisfied for like reasons that the
employer in refusing to secure additional equipment has not
violated its responsibility for taking every reasonable precaution
to protect its workers.
15
Finally before leaving this case it is important that one
aspect of the employer's case is discussed. The admitted evidence
disclosed through Mr. Dash suggested that while on overtime the
College's female staff (as well as employees who because of age or
illness are disabled) are automatically excused or exempted
presumably because of safety concerns from participating in the
practice of erecting and dismantling the ice sculptures. In having
regard to our views that the College's current practice has not
been shown to be unsafe we question the prudence of extending an
exemption solely by reason of gender.
We note for the record the trade union's alternative argument
requesting the grievor's exemption from participating in the
practice in order to accommodate his safety concerns in a like way.
In other words, the trade union argued that the grievor (as well as
his male colleagues) have been discriminated against contrary to
the collective agreement.
We do not hold that such accommodation should be extended the
grievor in the instant case as that might be interpreted or
perceived as being tantamount to granting unilaterally an amendment
of the grievance. Rather, the grievor, having regard to the
provisions of the collective agreement, may file yet another
grievance seeking an exemption from the College's practice for
reasons other than safety.
For all the foregoing reasons the grievance is dismissed.
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Dated this 1st day of April 1992.
David H. Kates
I dissent "Jane C. Grimwood" See dissent
Trade Union Nominee
I concur "Richard O'Connor"
Employer Nominee
Algonquin College and
Ontario Public Service Employees Union
Grievance re Article 6.2.7 of the
Collective Agreement (OPSEU 90D925)
Dissent from the Award of the Majority
/
I must respectfully dissent from the Awardof the Majority, and I will
be brief in doing so.
An unsafe practise cannot be discovered by statistical information. Nor
can a practise be deemed safe simply by reason of its conformity with the
industry norm. One accident which can be avoided, or could have been
avoided, is too many. And if we waited until everyone changed from an unsafe
practise then no one would ever try something better, before the others.
That might require some degree of common sense -- but as we all know, it is
not as common as it ought to be.
It %ms "con, non sense" on the'part of'the College that caused it' to exempt
female staff from participating in the practice of erecting and dismantling
ice sculptures. Of course, we do not know which specific part of the activity
concerned it and which part(s) of the female physiology it thought more
susceptible. But it is a logical inference from this one fact, to conclude,
again, that without either statistical accident ratios, nor a comparable
industry practise, the College decided to excempt women.
Or did it really mean weak women, and men with a histroy of herniated discs?
Or ~omen and men with pre-existing medical conditions of a certain type?
The task in question, is archaic -- brawn over brain, force over innovation.
The College views it as a necessary evil -- I view it as a practise that
innovation needs to consign to the history books. And i% will be -- just
like a host of other practises in traditional manufacturim~sec+-ors.
I would allow the grievance. ~~ ,~..~~,~'~~
Ja~/i~.Gri~i~o~, Union Nominee