HomeMy WebLinkAbout1988-1170.Hurley.89-04-04~ '~ ONTARIO EMPLOY£$ DE LA COURONNE
~ CROWN EMPLOYEES DE L'ONTAR/O
~" GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
1~0 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G tZ$- SUtTE 2100 7'ELEPHONE/T£!..~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2t00 (416) 5~8-06E8
1170/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Hurley)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
Before:
N.V. Dissanayake - Vice-Chairperson
S. Nicholson - Member
D. Andersen - Member
APPEARING FOR H. Law
THE GRX~VOR: Grievance Officer
Ontario Public Service Employees union
APPEARING FOR M.A. Smeaton
THE EHPLOYER: Manager, Staff Relations
Human Resources Branch
Ministry of Transportation
HEARING: March 28, 1989
2
AWARD
These are three grievances filed by ~he grievor, PaT
Huriey~ a survey 5echnician 3, employed by ~he Ministry
of Transportation. Two of the grievances are dated
OcTober 3, i985 and reiaue to his re-assignment from one
survey crew to another. The third grievance dated
October 5 is an allegation of contravention of article
i2 (rest periods) and/or article 18 (health and safety}
of the collective agreement. At the ou~se[ the parties
agreed that the two grievances relating to the crew
change should be heard together. It was further agreed
that evidence adduced in ~ne crew change grievances would
be applied 5o the third grievance. Counsel for the
Employer took the position ~hat ~he Board lacked
jurisdiction to hear any of the three grievances. The.
Board first heard evidence and submissions on uhe
preliminary objection to the crew change grievances and
then heard evidence and submissions on the preliminary
objection and the merits of the rest period/health and
safety grievance.
The crew change Grievance
The grievor had been for most of ~he spring and
summer of 1988 working _ at sites in the
Trenton/Campbellford area. During the week ending
3
September 23, 1988 he was on a job in Trenton as a member
of a crew under party chief, Mr. R. Lidsnone. At the end
cf that jOD On September 23, the grievor was re-assigned
to a crew supervised by party chief, Mr. L. Farreii, aL
a sine on Highway 400. 2n the two grievances the grievor
alleges respec~iveiy that this crew change
consti~u~e~ discrimination and harassment and
amounted to unjust discipline.
The Employer contends that the crew change is a
manner of job assignment which is clearly within the
exclusive management functions stipulated under section
i8(i) (a) of the Crown Employees Collective Bargaining
Act. He submits that the union bears the onus of
establishing that the job assignment in fact constituted
discipline as would give the Board jurisdiction under
section i8(2) {c). The union did not disagree with this
position as to onus.
The union's position is that the change of crew is
in fact discipline disguised as a job re-assignment.
Counsel for the union points to the evidence tha~ during
%he grievor's previous job in Trenton, the Employer had
written a letter to ~he grievor alleging poor work
performance. The crew change followed shortly thereafter.
The grievor testified that the re-assignment penalized
4
him by reducing his enti~iement 5o 5ravei expenses by
some 60 percent. The government policy includes a rule
nha~ ~ravei expenses will be paid on the basis of ~he
distance between an einpioyee's work site, and the
employee's designated headquarters or hozae, whichever' is
lesser. When this rule is applied to 5he grievor, he had
a greate.r claim for ~ravei if he worked in Trenton than
if he worked on the Highway 400 site. Another government
rule required that employees must share the travel (e.g.
by a car pooling arrangement) if two or more are
travelling to' a job siUe from the same locality. Since
there was another employee travelling to the Highway 400
job from the Oshawa area where the grievor lived, he was
obliged 5o share the travel. The grievor testified 5hat
he preferred to drive his car' no work rather than car
pool. Therefore he claims that the crew change penalized
him by requiring him to share the driving. The evidence
establishes that there has been a history of bad-blood
between the grievor and ~he Highway 400 par~y chief, Mr.
Farrell. it is %bus contended that the grievor was
deliberately re-assigned to Mr. Farrell's crew, knowing
that ~he latter would give the grievor "a hard ~ime"
The Board agrees with Counsel for the union that the
Employer cannot avoid the grievance procedure and
arbitration by disguising an act of disci, pline as an
exercise of an exclusive management right. Neverth~iess0
%he Act has specifically excluded certain management
functions fro~ the scrutiny of the Board. Where a union
is claiming, as beret that what is clearly an exercise
of an exciusive management function was in fact a
disciplinary act on %he part of the empioyer~ the Board
must be satisfied by.cogent evidence 5hat that in ~ac5
is the case. The Board must, in the absence of such
cogent evidence, be loath ~o interfere with the right of
the Employer 5o manage, a right decreed by 5he
legislature [o be an exclusive management function.
On th= basis of the evidence before us, we cannot
be satisfied that the union has met its onus. ~he
evidence is that re-assignments of crews do happen from
time 5o gime. Employees may have advantages, real or
perceived, depending on the location of a particular job
site. The fact that ~he grievor found ~hat ~he ~ighway
400 location was less profitable and desirable, does not
by itself establish that he has been penalized by the re-
assignment. Furthermore, ~he evidence indicates that
while the ill-feeling was between the grievor and Mr.
Parrell, Mr. Farrell had nothing to do with the impugned
management conduct, i.e. the crew change, in fact, Mr.
Farreii was quite upset about the grievor being re-
assigned to his crew. He was told that he had no choice
6
in the matter. While evident= indicates that Mr. Farreil
was told than he can report any problems he may encounter
with the grievor, we do not accept the union's position
that this is evidence that the grievor was being ~'se~ up"
for discipline. When seen in context, what the evidence
shows is that when Mr. Parreii displayed anger upon being
advised that the grievor was joining his crew, he was
simply assured that if there are problems with the
grievor ~here are ways of dealing with them.
Mr. Lids5one did write to the grievor alleging poor
work performance on the Trenton job. A grievance
followed and in the grievance procedure 5he grievor was
given a written assurance that the Employer did hoc
consider the letter as disciplinary and that it is not
part of the grievor's employment record. When the matter
came before this Board, ~he Employer gave further
assurances that the contents of the letter will not be
relied on in nhe future for any purpose. On the basis
of these assurances, which are now recorded in a decision
of the Board (1170/$$, 1189/88 Hurlev and Meszaros~, the
grievor withdrew his grievance. On the basis of all
of the evidence before us, ~he Board cannot conclude ~hat
the change in crew assignment in question was an act of
7
discipline on the part of ~he Employer. Accordingly,
the Board is without jurisdiction to entertain these
grievances, .and the same are hereby dismissed.
The rest period/heaish and safet~ crievance
The employees engaged in she field as par% of a
survey crew do not have any washroom facilities of their
own. The practice is to use public washrooms such as
those in services sta5ions or restaurants. The employees
usually have to wait for their breaks in order ~o use a
washroom. They had a morning break at around i0:00 a.m.
and another at around 3:00 p.m. The practice is for the
crew chief to pick up the employees in the Ministry truck
and drive [hem to a nearby public facility where they can
use a washroom and buy a coffee.
On Oc=ober 3, 1988, the grievor was working on Mr.
Farrell's crew near Highway 400. Highway 400 is a major
highway with 3 northbound and $ southbound lanes divided
by a steel guard-rail. That day the crew had been
working on a field adjacent to the south-bound lanes of
the highway. Around 1~:00 a.m. the grievor and the ~wo
other crew members came on ~o ~he shoulder of the highway
on the South-bound side expecsing ~o be picked up by Mr.
Farreii for their mid-morning break. However, Mr.
Farreil was in nhe Ministry truck parked on the shoulder
of the north-bound lanes across the highway. The griever
did not Lear any yelling by Mr. Farrell, but he assumed
that Mr. Farreil expecned ~he ~hree employees no cross
the highway no board ~he vehicle. The ember
employees ran across Highway 400 and got in to ~he ~ruck.
However, ~he griever decided i~ was no~ safe to do so and
remained where he was. Mr. Farreii drove off nornh-bound
winh ~he two employees ~o the nex~ intersection and
stopped to pick up some coffee. Then Mr. Farreil turned
around and headed south-bound on Highway 400 back to
where the grievor was. When Mr. Farrell arrived, he
expected the employees to ge~ back ~o work and ~he 2
employees who had accompanied him got off the vehicle and
were ready .~o do so. However, the grievor told Mr.
Farreii that he had to use a washroom. Everyone 5hen'gou
back into the ~ruck and Mr. Farreii drove souuhbound
Highway 400 about 5 miles ~o a service station/Burger
King. The grievor used uhe washroom at ~he Burger King,
and purchased a coffee and drank i= in the truck.
The next day, the crew was on the same job, but uhe
crew was on the north bound side of the highway a5 5he
~ime of the morning break. Mr. Farrell picked up
employees and drove them northbound to a Beckers store
located on a side streeu. The grievor had Lo use the
9
toilet. He went to ch= back oE the store and down some
stairs where he fo~lnd a washroom, i~ was dark in chere
and was unde~ conscr'uczion. The grievor ~estified ~ha~
he found the washroom jus~ too dir~y and ~hat he turned
back without using it. When h= went t~ the ~ruck he
complained ~o ~4r. Farreii that the Beckers s~ore was not
a good place to come for Uheir break and suggested that
~hey go ~o another place. Mr. Farreli refused, stating
that the BecEers Store was "OK" for h~m and that the
other 2 employees had not complained. That afternoon the
employees were driven to the same Beckers Store again
despite the grievor~s protests ~hat he wished to go to
so~e other place.
Articles 12.1 and 18(i; read as follows:
12.i The present practice for rest periods i~
each shift shall be maintained.
18.1 The Employer shall continue to make
reasonable provisions for the safety and.
health of its employees during nhe hours
of their employment, i5 is agreed tha~
both the Employer and the Union shall
co-operate to the fullest extent
possible in nhe prevention of accidents
and in the reasonable promotion of
safety and health of ali employees.
Under cross examination, Mr. Farrell agreed that
since employees only get an opportunity to use a
washroom during their breaks, it was important to have
i0
access to a washroom during their breaks. He also
agreed 5hat it is reasonable for an employee to expec%
~nat the washroom is reasonaDiy clean. However, Mr.
Farreil took the position that the Beckers store was [he
closest available place and 5hat even if Lhe grievor had
specifically complained abo~]t 5he Beckets washroom being
too dirty, he would still have taken him there. He
testified that while the Beckers washroom was not the
cleanest washroom, i% was s%ili "usable". However, he
conceded that he had non seen the condition of the
washroom on %he day in question, although he though5 he
may have used iT 5he day before.
From the evidence, the Board concludes that for
purposes of article 12.1, it is the practice of the
Empioy~r to provide employees doing field work as
members of a survey crew access to a washroom during
Eheir res% breaks. The Employer's ~'preiiminary
objection" is to the effect that the Board shouid~ no%
seize jurisdiction to decide this issue, because it will
lead to a flood of complaints about unclean washroom
facilities, it is further argued that the cleanliness
of washrooms is a matter beyond %he control of %he
Employer because by the very nature of the work, 5he
Employer mus~ rely on public washrooms in the area.
Counsel submits that the Ministry of Health has the
ii
authority go supez-vise cleanliness of public washrooms
and ~ha% %herefore if a public washroom is not clean a
co~.plain~t should be lodged wiuh chat Minisnry. He urges
%he Board non nc. under5ake %he nask of determining
whether public washrooms around the province are clean
enough.
From ~he evidence, we conclude tha%, when ~he
grievor refused ~o cross Highway 400 on October 3, Mr.
Farrell's initial position was that by so refusing, the
grievor had waived his rest period. The evidence is
clear tha~ if 5he grievor had not stood up for his
righ5s, Mr. Farreli expeczed him to get back ~o work
because as far as he was concerned the break was over.
in our view, it is contrary to the Employer's practice
to make an employee's right to a rest period be made
conditional on his willingness to cross a major highway,
which we find below is a risk ~o which no employee
should be exposed to. By this conduct the Employer
failed to maintain its prac%ice relating to rest periods
and thus contravened ar5icle 12. We make this finding
notwithstandirtg that Mr. Farreli gave the grievor his
break after he specifically requested that he had to use
a washroom. It is reasonable Eo expect a~d ~he
12
established practice enui~ied the grievor to a break as
a mat~er of rou%ine, without having to demand his
rights.
We= :urther find %hat The Employer failed to p~'ovid~
the grievor adequate washroom facilities. I% was the
p~ac[ice to provide access ~o a washroom and in our view
the failure to provide access %o a clean washroom where
one is reasonably available is not consisten% wiuh that
practice. Mr. Farrell had no personal knowledge of the
condition of the Beckets washroom. Even if he had used
i5 in the past he was in no posi=ion 5o deny that on the
day in question it was extremely dirty. In any even~,
i~ was apparen~ from Mr. Farrell's testimony that he was
no~ concerned about the grievor's feelihgs about using
an unclean washroom. He expected ~he grievor to use
that washroom (a) because the o~her employees used ic
and (b) because Beckers was the closest washroom %o the
work site. In our view (a) above is not an appropriaue
way 5o measure the suitability of a washroom. The
employment relationship is such 5hat some employees are
reluctant to protest against their supervisor's
decisions. The lack of protest by two employees is no
indication %hat ~he washroom was up 5o accep~abie
standards. Besides, ~here is no evidence uha~ either
of ~he other two empioy~es used the Becker's washroom
13
%hat day. There was some dispute as to the distances
between the work sm~e a.~:d ~ke washrooms at th~ Beckers
Smote .and B~rger King. Nevertheless, the ~oard is
satisfied tha% if there was a difference in disnaace
was not significant to justify forcing an employee
using an unclean washroom.
The Board recognizes 5ha~ survey crew employees who
work in ~he field canno~ reasonably expect the same
washroom facilities as, for example, employees working
in an office environmen[. If the oec~=rs washroom was
the o~liy one available in the area, 5he Board would have
been more receptive to the Employer's position
cleanliness of public washrooms is beyond its control.
However, %he fact is that ~here was a clean washroor:
available at the Burger King. The difference in
distance was minimal, in ~he way he conducted himself
on nhe day in question and during his testimony before
~he Board, Mr. Farrelt displayed a totally non-cariag
attitude towards the grievor's concerns about having
access to a clean washroom. The Board finds that his
conduct contravened article 12, by failing to maintain
the Employer's practice relating ~o rest periods. The
Board furnher finds that the failure to give access to
14
a clean washroom which was available also contravened
the obligation in article i8.i no provide reasonable
proviszons for the h~a~i-~ of -'--~= grievo¥.
The Board further finds that the
contravened article i~.i on October 13 by i~'~ effect
s'~aking ~he grievor choose between crossing the Highway
~.>z foregoing' his rest period. We are satisfied nhat
Farreil had no intention of picking up the grievor, when
he drove off with the other two employees, if he did,
5here was no need to stop for coffee for 5he other two
employees. While it is true ~hat the grievor was not
directed to cross the highway, it is clear tha~ ~hat was
wl~at was expected. Tile o~her two employees complied.
The grievor did not. In his ~esnimony, Mr. Farreil made
it clear that he expected the grievor 5o cross the
highway. Thus he testified that at I0:00 a.m. [he
highway was not busy and that it was safe to cross'
Highway 400. He relied on the fac5 tha~ ~wo employees
did cross. His position was that if it was not safe to
do so the two employees would not have crossed. On the
other hand the grievor testified that the highway was
very busy, and that he felt it was ',~nsafe to cross
The question of whether a highway is busy at a
given time is a matter of degree. In our view~ unless
15
there is absolutely ne ozh~r alternative, it is not
reasonable for zhe Employer ~o expec% employees to cross
a major 6 lane high~ay such as Highway 400 aE any
At the time ~he highwa~ had ne signs posted ~o cauuion
motorists ~ha~ survey crews were present. The fdc~ ~ha~
2 employees complied and made i% across safely in our
view is ~otaiiy irrelevant. Once again ~he Board
emphasizes, 5hat employees are by the very nasuze of 5he
relationship reluctant to challenge a s~pervisor's
direcuicns or expecta5ions. While no specific order was
given ~o ~he griever to cross the highway, by parking
across 5he highway and expecting him ~o cross, Mr.
Farreli was putting pressure on him to %aka the risk.
it is significanE to note, tha5 in his evidence ~4r.
Farreli offered no explanation as ~o why he did not
drive around to the south-bound lanes when he knew Uhat
that was where the employees were. in our view, he
demonstrated a 5oral lack of concern for the employee's
safety. He highlighted this attisude during his
testimony when he was so casual in asserting %hat it was
perfectly safe to run across Highway 400 at 10:00 in 5he
morning. The Board rejects ~hat assertion and finds
that by his conduct, Mr. Farrell failed to make
reasonable provision for ~he griever's safety in
contraven5ion of article 18.1.
1.6
With regard to the preliminary objection, th= Board
merely makes '"~=' following observation. The Board has
no au~nsrlay ~o regk~la ~=- [he cieaniin~ss of public
washrocx:s and w= do not purpcFn zo do se here. However
it is within this Board's j~risdiction to int=rpre~ and
apply articles 12 and i6 of the collective agreement
the evidence before ii in each case. We have done
here, and hay= found that the Employer contra%ened the
collective agreement as described above.
In summary, the Board declares for reasons set out
above, thac the Employer 'has contravened artlc~e' ' - 12.1
and 18.1 of the coiiecsive agreement.
Dated this 4£W-. day of ~.-.cMay, 1989 at Hamilton Ontario
Nimal V. D±ssanayake
Vice-Chairperson
$. N±cho~son
Member
D. ~derse~
Member