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HomeMy WebLinkAboutTaurozzi 96-07-02 IN THE ~L~TTER OF AN ~BITP~TION GEORGE BROWN COLLEGE (THE EMPLOYER) AND : ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF THE GRIEVANCE OF NICK TAUROZZI; (FILE NO. 95G092) BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR FRED COWELL, EMPLOYER NOMINEE MICHAEL LYONS, UNION NOMINEE Appearances for the Employer: Lynn Thomson, Counsel ApDearances for the Union: George Richards, Arbitration Officer Nick Taurozzi, Grievor A hearing in this matter was held at Toronto on May 28, 1996. AWARD The grievance dated August 5, 1995 is a claim "that my supervisor and my department are in violation of Articles 3.1, 13.1 and any other Article that may apply in that they are performing support staff work, i.e., electrical". At the hearing, the Board was advised that the grievance concerned the maintenance of a fire alarm system at the St. James Campus. A trouble identified as a ground fault occurred on the panel on August 5th. The Union asserts that the records indicate that the fault was brought to the College's attention and it was left to the following Tuesday. It is the Union's position that an electrician should have been called in to service and correct the problem on August 5th, the failure of which is a violation of the Ontario Health and Safety Act. The Union also asserts that the same problem existed since July 10th and requested the documents maintained by the Security Department as well as those of the installer of the fire system from that date to August 5th to indicate whatever action had been taken by the Employer to deal with the problem. The Grievor claims a violation of Article 13.1 of the collective agreement which is: "Health and Safety Act The parties acknowledge the application of the Occupation Health and Safety Act." The Union seeks a declaration of a violation of the collective agreement and an order from this Board directing the Employer to clarify and amend its practice to deal promptly with trouble when indicated in the fire alarm system. The Grievor, an electrician, was not at work on August 5th and claims that he should have been - 2 - called in to deal with the ground fault and be paid for the time lost. The Grievor's concern is the handling of the fire alarm in the period of July 10th to August 5th and for that purpose requests an order by the Board for production of the relevant documents. It is the position of the Employer that the Union has requested the Board to enforce the provisions of OHSA which is not within the jurisdiction of this Board. The nature of the grievance was a claim that a supervisor was performing bargaining unit work on August 5th. The Union has now changed that grievance from the allegation that Mr. McGregor, a supervisor, had reset the alarm button on August 5th to focus on a ground fault problem from July 10th to August 5th which is a fundamental change from the allegation of "encroachment on bargaining unit work". On both grounds, therefore, it is submitted that the Board should reject the grievance as it does not have jurisdiction to deal with the matter set out by the Union at the hearing. Having regard to Article 13.1, the Board is obliged to take into account the terms of OHSA when applying other provisions of the collective agreement but it does not have the authority to administer the Act which is the only issue now defined by the Union as the grievance which relates to the safe operation of the Fire Alarm panel at the College. The complaint as now described could involve the Fire Code and dealing with the Fire Marshall under the Fire Departments Act. The grievance however, does not concern a violation of the collective agreement. It is the Employer's position that it is a policy decision of the Employer when to call in an electrician to repair a fire panel and that is not covered by a term of the collective agreement. The Grievor is a member of the Health and Safety Committee. If there was a concern about the alarm system, it should have been referred to that Committee. The Fire Alarm Procedure has been approved by the Fire Department and an inspection was done on August 5th. The College exercised its discretion to determine when the problem with the alarm system would be fixed. To allow the Grievor to proceed with the grievance as indicated at the hearing relating to unsafe conditions in July and thereafter and a failure to perform certain work on August 5th is a fundamental change to the grievance involving an issue which is not within the Board's jurisdiction. It is the Union's submission that by including Article 13 in the collective agreement, the employees have the right to work in a safe and healthy workplace and that the rights and protections of the Act must apply to them. The Act is incorporated by reference and applies to the terms of the collective agreement so that where there has been a violation of the terms of the Act, there has also been a violation of the collective agreement. The grievance refers to the violation of Article 13.1 and a claim of 6ompensation which is sufficient reference to the Board. The Union requests the Board to give direction to the parties resulting from a violation of the Employer's Colleges Fire Alarm system as to what should have been done to correct the problem identified by the Grievor. The Union claims that this circumstance involves a violation of Section 25(2h) of OHSA. The Grievor has alleged in the grievance a violation of Article 13(1) of the collective agreement in relation however, to his claim that a supervisor was performing bargaining unit work. On the face of the grievance, it is clearly the Grievor's claim that he should have been called in as the electrician to reset the alarm which was required on August 5th when he was absent from work. By having that corrected by a supervisor, it is alleged that he was denied a call-in for which he seeks compensation for August 5, 1995 as indicated on the grievance. The Grievor's claim under Article 3.1 - Management Functions, could be considered in the light of the application of OHSA referred to in Article 13.1 with specific regard to the allegation that management had improperly assigned the work outside of the bargaining unit. The reference to Article 13.1 however, does not stand alone in the collective agreement to provide authority for the Board to administer the terms of that Act. The Colleges Collective Bargaining Act, RSO, 1990, Chp. C-15 does not include a similar provision to Section 48(12) of the Labour Relations Act. By reference to OHSA in the collective agreement, the parties have recognized the application of those terms to matters arising under the terms of the collective agreement to which that Act may have reference. A board of arbitration however, must find a violation of the collective agreement to provide a remedy in a grievance; it does not have the authority by reference to OHSA in the collective agreement to - 5 - administer its provisions as if the Board was delegated to do so by the Minister of Labour pursuant to the terms of that Act. If then, the Union established that there was a violation of a term of the collective agreement by assigning bargaining unit work to a supervisor with reference to an application of the terms of OHSA, the Board would have the authority to provide a remedy for the loss of work to the bargaining unit and specifically to the Grievor if that loss was established. That result however, does not follow if there was a finding of a violation of Section 25(2h) of OHSA as that could only be relevant by the application of the terms of the Act to that part the collective agreement involved in the issue. It became clear at the hearing that the substantive issue sought to be resolved by the Grievor is his concern with the Employer's Fire Alarm Code and its application of that Code in the period July 10th to August 5, 1995. It is a claim of unsafe working conditions as a result of the application or lack thereof of the Employer's policy regarding the operation of that Fire Alarm System. We are advised that the Employer's Fire Code was approved by the Fire Department. It appears that the Grievor now requests that this Board make an enquiry if within that period, the ground fault problems he would identify were not properly corrected although brought to the Employer's attention and that its Fire Alarm System is not appropriate. As a subsidiary issue, the Grievor alleges compensation for alleged failure of the Employer to call him in to correct the problem on August 5th. ~i ~.~ ~ The Act sets out the duties of employers in Sections 25 and 26 to meet the intent of the Act to provide for the health and safety of workers. In that context, a joint health and safety committee is required where there are more than twenty workers regularly employed and which is in place at the College. The Grievor serves as a Union representative on that committee. Where there is a complaint that the Employer has not carried out its duties set out in Article 25 of the Act, the joint committee is the initial forum to deal a complaint and to "identify situations that may be a source of danger or hazard to workers".., and to make recommendations. The enforcement procedures are provided in the terms of the Act. Those are not the functions which this Board has the authority to apply. The Union requests the Board to consider and if necessary, override the _Employer's Fire Alarm Plan and to give direction to the parties with a new draft order if an objective risk is found. In our view, to accept that submission would exceed the Board's authority which arises under the terms of the collective agreement. While the Board can consider and apply the terms of OHSA in determining whether there has been a violation of any of the provisions of the collective agreement, it is not empowered by the collective agreement or by statute to take over the functions ~of the administration of OHSA. In the circumstances outlined at the hearing concerning the grievance, the real and substantive complaint of the Grievor should have been processed in that manner bY using the procedures set out in OHSA to deal with a compliant which involved the effectiveness of the Fire Alarm System ~at the College. That issue on its face is a substantial and fundamental difference from the issue in the grievance which was presented on August 5th pursuant to the terms of the collective agreement. The Board finds that it does not have jurisdiction under the collective agreement to determine the real and substantive issue in the grievance as amended at the hearing or to award the remedy requested. It is our award therefore, that the Employer's objection to jurisdiction is allowed and these proceedings are terminated. DATED AT OAKVILLE THIS 2ND DAY OF JULY, 1996 HOWARD FRED COWELL, EMPLOYER NOMINEE MICHAEL LYONS, UNION N~~MINEE