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HomeMy WebLinkAbout1988-1203.Beauparlant.89-07-27 EMPLOYL~S DE I..4 COURONNE CROWN EMPLOYEES DE L'ONTARiO ONTARIO GRIfiVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T~cL~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0688 1203/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (G. Beauparlant) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer Before: R.L. Verity Vice-Chairperson F. Taylor Member E. Orsini Member For the Grievor: J. Kovacs Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: K. Cribbie Staff Relations Advisor Ministry of Transportation Hearings: .April 4, 1989 May 18, 1989 DECISION Guy Beauparlant grieves the loss of his winter assignment with the Ministry - the position of Night Patrol Supervisor or Night Patroller. On November 3, 1988, Mr. Beauparlant filed a grievance alleging unjust demotion. The remedy requested was reassignment to the Night Patrol Supervisor position. The Employer contends that the Board lacks jurisdiction to determine the merits. However, on consent the Board reserved on the preliminary objection and ~proceeded to hear the grievance. The facts can be'briefly summarized. The grievor is a long service full time employee with seniority dating back to September, 1955. ?or 17 years prior to the winter season of I988-89, Mr. 8eauparlant was assigned winter duties as Night Patrol Supervisor working nights Monday to Friday (classification Equipment Operator 4) at Verner, in the Ministr½'s North Bay District. .During that period he successfully supervised two five men crews as Night Patroller. In 1987, Mr. Beauparlant suffered a neck injury and was off work from April to December. Following his return to work as Night Patroller on December 21, 1987, his working relationship with at least some patrol members appears to have soured. In December 1987, Mr'. Beauparlant advised management of a concern that several crew members reported for work under the influence of alcohol, and had done so for several years. Investigations by senior management personnel failed to substantiate that allegation. However, on March 17, 1988, Mr. Beauparlant - recorded his observation that on that date several crew members "smelled of alcohol" He also noted the fact that some crew members disregarded his instructions. On March 22, 1988, four crew members wrote a detailed account of numerous incidents, all of which were critical of the grievor's supervisory skills. The grievor was not made. aware of t~e contents of the criticisms until the arbitration hearing. However, at the hearing the grievor denied that any of the allege~ incidents had occurred. There is no dispute that the grievor met with District Maintenance Engineer.Ray Mantha and District Maintenance Superintendent John Porter on March 28, 1988. Mr. Mantha testified that at the meeting, the grievor produced tapes of crew member conversations which had been transcribed without their knowledge. According to Mr. Mantha's evidence, he advised that the use of tapes was inappropriate and made suggestions with regard to methods to improve the grievor's management techniques, The grievor was told to take his instructions from Patrol Supervisor Fern Plant, Subsequent investigations included a meeting with the patrol crews to discuss their concerns in April of 1988, Management concluded that the grievor's allegation of the smell of alcohol in the workplace was without merit. Mr. Mantha testified that on September 2, 1988 the grievor attended at his office with "edited tapes"'of crew conversations. Apparently the tapes were prepared to illustrate the fact that crew members were against him. Mr. Mantha refused to hear the tapes. In addition, Mr. Mantha testified that the grievor returned to his office on September 27 to report that crew members had a change of heart and now favoured his reassignment to winter supervisory duties. According to Mr. Mantha, he advised the grievor that it. would be inappropriate to reassign him winter supervisory duties and that he would work primarily as a plow operator. The following day, the District Engineer satisfied himself that Verner Patrol Supervisor, Fern Plant, agreed with the decision. The grievor was unable to recall either September meeting with the District Engineer. The Board is satisfied that Mr. Mantha's evidence is credible based on the fact that he noted in his diary the time and substance of.both meetings, as was his practice. On October 19, 1988, the grievor-was assigned winter auties at the Verner Patrol Yard that substantially reduced his supervisory responsibilities. He was required to work as a snow plow operator including weekend assignments, with only two supervisory shifts each week. There was no change in classification and no reduction in the base salary. The Employer maintains that the proper characterization of the events was an assignment of duties pursuant to Section 18(1)(a) of the Crown Employees Collective Bargaining Act and that the Board had no authority to review that decision in the absence of a disciplinary demotion. The Board was referred to the following authorities: OPSEU (Paul Henry) and Ministry of Health 622/88 (Slone}; and OPSEU (Un~on Grievance) and Ministry of Health 687/84 (Kennedy). The thrust of the Union's argument was that mangement's reaction to the grievor's difficulties was inappropriate and was in effect a disciplinary demotion without just cause. In support, Mr. Kovacs cited several authorities including Kalina and Ministry of the Solicitor General 205/79.(Teplitsky); OPSEU (Hollis L. (Olexy) MacPherson) and Ministry of Community and Social Services 83/84 (Brandt); Re St. Paul's Hospital and Registered Nurses' Association of British Columbia (1980), 28 L.A.C. (2d) 5~ (Vickers); and Re Whitby Boat Works Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2679 (i982), 5 L.A.C. (3d 327 (McLaren). Reference was made to the Crown Employees Collective Bargaining Act as follows: 18. - (1) 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 such matters will not be the subject of collective bargaining nor .come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (c) that he has been disciplined or dismissed or suspended Trom his employment without ~ust cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 19. - (1) Every collective agreement shall be deemed to provide that in the event the part~es are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for .arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the part~es to present their evidence and to make their suDmissiohs, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. The extent of the Grievance Settlement Board's jurisdiction has been considered by numerous panels and is neatly summarized by Vice-Chairperson Swan in Re Haladay 94/78 at p. 3: We should note that our jurisdiction is statutory only, and has two main branches. First, we are vested with jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the CollectiVe Agreement; this jurisdiction arises under Section 18 [now Section 19] of the Crown Employees Collective Bargaining Act. Second, beyond that jurisdiction and independent of it, we have the jurisdiction set out in Section 17(2) [now Section 18(2)] quoted above. We have no other authority to intercede between the parties; we do not have any inherent jurisdiction to do justice, or what we may conceive to be justice or to provide remedies, no matter how desperately a particular case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a Collective Agreement, and our jurisdiction is thus broadened to the extent that they have done so. Beyond this circumscribed jurisdiction, the Board's legal authority is non-existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a Court. In the instant matter, if this Board is to have jurisdiction, the Union must succeed in persuading us that management's actions were disciplinary in nature, pursuant to section 18(2)(c) of the Crown Employees Collective Bargaining Act. Simply stated, the Union's case stands or falls on the finding that the Employer's actions were disciplinary. In OPSEU (Hollis L. MacPherson) and Ministry of Communit~ and Social Services, supra, Vice-Chairperson Brandt was required to determine whether or not a particular memorandum could be characterized as a "work assignment" rather than a disciplinary response. At p. 6, Mr, Brandt made the following relevant comments: We agree with the Ministry's characterization of the memorandum. In doing so we do not intend to say that the intention of the Employer is controlling. Where an employer responds to alleged misconduct of an employee in a way which is prejudicial or detrimental to the job interests of that employee it will not suffice for the employer to simply deny that the prejudicial consequences were not intended, The test is an objective one. At the same time, however, the prejudicial or detrimental consequences must result from action of the employer and an employee cannot convert something which is, on its face, non-disciplinary, into. something which is disciplinary in effect by his or her own voluntary conduct. On all the evidence adduced, and despite the able arguments of Mr. Kovacs, the Board finds that management~s actions cannot be characterized as discip!inary. We accept Mr. Mantha's evidence that management acted in the belief that, at the relevant time, the grievor was unable to supervise the crews in a satisfactory manner as he had done in previous years. The Employer is entitled at any time to assess the work of an employee, and to determine whether or not. he is capable of performing assigned tasks. In the case of an employee who has performed those tasks in a satisfactory manner in the past, the onus is on the Employer to show that the employee is no longer capable of satisfactory 'performance. In the instant grievance, the employer has met that onus. Clearly, management acted to alleviate the obvious tension on the patrol. There was no evidence that management's actions were disciplinary. Simply stated, there was no misconduct and no culpable behaviour on the part of the grievor. It is quite understandable that from a subjective standpoint, the grievor honestly believed that he had been demoted by his loss of status and loss of job satisfaction. HoweveK, the Board is satisfied that what occurred in 1988 was not a disciplinary demotion but rather an assignment of winter duties which fell squarely within the grievor's classification as a Highway Equipment Operator 4. This grievance involves a work assignment which is within the exclusive jurisdiction of management under Section 18(1)(a) of the Crown Employees Collective Bargaining Act. The concluding words of s.18 of the Act specifically provides that such matters are not within the Board's jurisdiction. In the result, we must conclude that the Employer's preliminary objection is well founded and accordingly this grievance is dismissed, DATED at Brantford, Ontario, this i~r~- day of .~1~, I989. R. L. VERITY, Q.C. - VICE-CHAIRPERSON ~I - MEMBER