HomeMy WebLinkAbout1989-1763.Goedhuis.92-02-14 ONTARIO EMPL OY~$ DE LA COURONNE
~_~. CROWN EMPLOYEES OE L 'ONTARIO
~ GRIEVANCE C,OMMISSION DE
SETTLEMENT *REGLEMENT
BOARD DES GRIEFS
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1763/89
IN THE MATTER OF AN ARBITRATION
Under
TH~ CROWN ~PLOYEES COLLECTIVE BARGAINING ACT
Before
THE .GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Goedhuis)
Grlevor
- and -
The Crown in Right of Ontario
(Ministry of Correctional. Services)
Employer
BEFORE: B. Eirkwood Vice-Chairperson
I. Thomson Member
R. Scott Member
FOR THE K. Whitaker
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE J. Ravenscroft
EMPLOYER Grievance Officer
Ministry of Correctional Services
HEARING April 2, 1991
July 29, 1991
Page 2
The grievor was an Industrial Officer 1 at the
Millbrook Correctional Centre. He held the position title of
Production Control Officer. He worked in the Industrial Shop
supervising inmates in the fabrication of metal products for
other correctional institutions and for Provincial Parks.
Mr. Kolorz, the Maintenance Manager, was
responsible for providing the' grievor his annual appraisal on
his work performance. Mr. Kolorz prepared a written report,
the Performance Planning and Review (PPR) for the period from
October 1988 to September 30, 1989,.after consulting Mr.
Heard, the senior Industrial Officer. Mr. Heard, although in
the bargaining unit, supervised the Industrial Shop and was
the grievor's immediate supervisor. Mr. Heard saw the
grievor's work daily and advised the grievor of any problems.
Mr. Heard maintained notes in a fact file on the grievor's
performance, as he did with other employees. These notes
formed the basis of his discussions with Mr. Kolorz.
In December 1989, Mr. Kolorz met the grievor to
give him his annual appraisal on his work performance. Mr.
Kolorz presented the grievor with the PPR. Only two areas
needed improvement. The grievor needed to have closer
inspection of each facet of the inmates' work during
construction of products to prevent excessive reworking of
the resulting products, and the grievor needed to provide
more instruction and supervision in the operation of welding
equipment and in the proper set up of the operations.
The grievor testified that Mr. Kolorz told him in
the meeting that he was not watching the inmates closely
enough and that he had to make a greater effort in that area.
The grievor disputed Mr. Kolorz's assessment that his
s~pervision needed improvement. He argued that all targets
had been met. The grievor explained to Mr. Kolorz that he
was often called out to union meetings. The grievor had the
impression from his discussions with Mr. Kolorz that Mr.
Kolorz resented his involvement with the Union and the PPR
was a reflection of that attitude, The grievor alleged that
the employer was using the PPR to cause him to reduce his
participation in the Union. The grievor subsequently decided
to curtail his union activities.
Union's counsel alleged that the grievor was
appraised contrary to governing principles and standards
pursuant to section 18(2) (b) of the Crown ~mp]oyees'
Collective R~r~ninq ~ct (CECBA). He argued that the
Ministry had not been objective in its review as required by
the Ministry's governing standards, He also alleged that the
complaints were not properly brought to the grievor's
attention during the review period. Finally he argued that.
the PPR was an attempt by Mr, Kolorz to compel the grievor to
decrease his involvement in union meetings. He argued that
the authority to. appraise an employee pursuant to section
18(1) (b) of CECBA cannot be exercised in a manner
inconsistent with the Act. To prevent the grievor from
exercising his rights in the collective bargaining system is
contrary to section 29 of CECBA, and constitutes unfair
labour practice.
The Union sought the removal of the offending
portions of the PPR.
Employer's counsel argued that the grievor had been
fairly appraised in accordance with the governing standards.
The onus was on the Union to show that the PPR was manifestly
wrong or that the grievor was appraised contrary to governing
standards. Employer's counsel'argued that the employer was
Page 4
not concerned with the grievor's absences. The grievor had
always been allowed time off for union business. The
Employer was concerned with his work while he was in the
Industrial shop. He had been told on several occasions that
more supervision was necessary to prevent unnecessary
reworking of the product. The Employer was concerned with
the quality of the products produced while under the
grievor's supervision.
The Employer has the power to appraise an
employee's work performance pursuant to.section 18(1)(b) of
CECBA, subject to the employee's right to grieve according to
section 18 (2) (b) of CECBA.
Sections 18(1) (b) and 18 (2) (b) 'of CECBA state:
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,...
(b) merit system, ~training and development,
appraisal and superannuation, the
governing principles of which are
subject to review by the employer with
the bargaining agent,
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,...
(b) that he has been appraised contrary to
governing principles and standards;
or...
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.
Page 5
The appraisal also must be consistent with the
rights provided to the employee by CECBA. Section 29(1) and
(2) of CECBA provide the employee with freedom to participate
in union activities. Sections 29(1) and (2) state:
29(1) No person who is acting on behalf ~f the
,
employer s.hall participate in or interfere
with the selection, formation,administration' ' ' '
of an employee organization OrI' the
representation of employees by such
organization, but nothing in this section
shall be deemed to deprive the ~mploye~ or a
person acting on behalf of the employer of
his freedom to express his views so long as
~he does not use coercion, intimidation,
threats, promises or undue influence.
(2) The employer or any person acting on~ehalf
of the employer shall not,
'(a) refuse t~ employee or continue to employ
or discriminate against any person with
regard to employment or to any term or
condition of employment because the per~on is
exercising any right under this Act or is not
a member of an employee organization.
Therefore the Employer cannot as the Union
suggested discriminate against~ the grievor by attributing any
negative connotation to his participation in union bus~ness.
The Union has the onus to prove that the governing principles
and standards have.been contravened and that section 29 of
CECBA has been violated.
In determining whether the Union has discharged its
burden of proof, as stated in R.J. Sco~t and M~n~s~ry of
Tr~nsDo~tat~on ~nd Communications G.S.B. 23/76 (Swa~),
we
must not substitute our decision for'the Employer's, who has
the benefit of first hand observation of the empIoyee, but we
must interfere if the conclusions reached by managemen[ were
unreasonable, manifestly wrong or were made dishonestly! with
discrimination or in bad faith.
?
Page 6.
We do not find that the employer discriminated
against the grievor in any manner for his active involvement
in union matters. We do not find that section 29 of CECBA
was violated and that the grievor's absence's from work to
attend to union business was held against him.
The grievor had been on the union executive since
1972, and held the position of President for two terms, and
the position of treasurer for one term. He has also been
Chief Steward' and was on the Employee Relations Committee.
Both parties recognized the grievor's value and expertise.
He was called upon by both bargaining unit members and
management staff to assist in the resolution of grievances
and complaints. On occasion, Mr. Kolorz, and Mr. Preston,
the Superintendent at the time, called upon him for
assistance.
It would be inconsistent that management would call
upon the grievor for his help and then criticize him for his
absence. It would require compelling evidence, which we do
not have, to find that the employer had acted in such a
manner. There was evidence to the contrary. The grievor's
freedom to participate in union activities was protected by
management. When Mr. Heard complained that the grievor's
absence was creating scheduling problems for him, he was told
by management that the grievor was to be allowed to
participate and that Mr. Heard had to accommodate his
absences.
The Union suggested that in the appraisal meeting,
Mr. Kolorz attributed the grievor's problems to his frequent
absences for union business. The grievor was not direct in
his accusation. In his direct examination, the grievor said
that he tried to explain that he was called away on union
business, that employees had the right to ask for him. He
Page 7
had a 'feeling' that Mr. Kolorz resented his involvement. On
cross-examination, he said that it was more than a feeling.
Mr. Kolorz could not recall such a comment, but did not think
that he would have made the comment as union matters were
important.
In the context of the grievor's evidence, we find
that the matter of attending union business arose as the
grievor's defence to the 'criticism. There was no evidence
that leads us to find that Mr. Kolorz attributed the lack of
supervision to the grievor's absences. There were occasions
which Mr. Kolorz relied upon, which will be reviewed later in
this decision that supported his position that some
supervision was lacking while the grievor was in the
Industrial Shop.
There were two annotations on the grievor's fact
file that the grievor had been absent to attend union
business. The.Union alleged that the employer emphasized the
grievor's absence for "Union Business" on its fact file to
use these absences against the grievor at a later time.
We do not find that the demarcation of "Union
business" was made for any improper purpose. The notations
were not made in a vacuum. On the two days where the
grievor's absenc~ was noted, there had been a complaint about
the grievor's work. The first time absence for union
business was noted, it related to Mr. Heard advising the
grievor that he had to let him know when he was leaving. The
grievor did so from that Jpoint on and there was no other
entry in that regard. The second time occurred when there
was a complaint about the grievor's work. In light of the
grievor's evidence that he was absent from two to four times
a week and for as much as four hours a week, we do not find
that two notations during a year, which had a bearing on the
grievor's work performance at those times, support a finding
Page 8 ~
that the employer was acting in bad faith or saw the
grievor's absences negatively.
The employer showed that there were incidents,
which Mr. Heard had recorded, when the grievor was on the
work floor when the resulting product made under his
supervision was not satisfactory. These incidents formed the
basis of the Employer's criticism in the grievor's PPR. The
areas that the employer focussed on in the PPR related to two
incidents, where the workmanship was faulty. The Employer
relied on the grievor's performance while he was present in
the Industrial shop and not while he was absent or attending
to union business. The Employer did not expect the grievor
to be present at all times, but at stages during the
production.
In January 1989, the grievor's lack of supervision
resulted in poor workmanship by the inmates. The grievor was'
responsible for the construction of certain doors. The
construction of doors takes several days and passes through
several stages. In this case the doors had to be reworked at
four stages. On the first occasion the doors were made too
large. The second time, the finish on the front frames was
poor. The corners were edged off and too short to finish the
corners and had to be redone. Then the rear tube buck f=ames
were twisted and again had to be reworked. Finally the
primer was not properly applied. The doors were painted
before the welds were completed. There was poor finish on
the welded corners, The blow holes at the welded corners
were not filled in and ground. Nor were the seams caulked
and finished before the paint was applied.
Page 9
Although lack of supervision was not specifically
referred to in the fact file on this occasion, the nature of
the defects supports the Employer's conclusion that the
grievor was not supervising the inmates closely and was not
supervising each stage attentively.
In September 1989 a similar situation arose. Four
doors that were to be sent to the Peterborough jail were·
improperly made and had to be reworked more than once. The
doors had to'be cut, welded and primed. The grievor said he
was away on union business when the doors were cut. Roger
Heard said that the grievor was away at the beginning of the
operation and he set up the cutting process for cutting one
angle. He told the grievor that he was to prepare the other
angleS. In this case the doors were first cut to the wrong
size. All the corners were then cut at the same angle
instead of being cut so that the corners could meet properly.
The ·doors had been improperly clamped, so that when the
frames were welded, they bent. The grievor was counselled on
this occasion.
The construction of the doors again took several
days. Even accepting that the initial error may have
occurred during the grievor's absence, there were still
sufficient opportunities for the grievor to supervise and
monitor the inmates to produce doors that did not have to be
reworked several times. We aqcept the evidence of Roger
Heard and Mr. Kolorz that the unsatisfactory product was a
result of the grievor's lack of supervision of the inmates.
We do not accept the Union's contention that the
poor skills of the inmates result in reworking products. If
the grievor had found that an inmate was not capable of
Page 10
performing a task or would not perform a task, the grievor ,
had the authority to reassign the inmate. Therefore we
cannot accept the general contention that the inmates' lack
of skills or co-operation is a basis for the poor
workmanship. On the contrary, if an inmate lacked skill,
closer scrutiny of the inmates' work would be required.
There had been a suggestion by Mr. KolorZ that the
grievor had spent time inappropriately at the vending
machines. We do not accept that there is any basis for this
suggestion. The grievor had not been spoken to nor
disciplined for any undue time spent there. Although we do
not accept this contention as a basis for supporting the PPR,
we do not find that its inclusion, is significant to vitiate
the comments made on the PPR.
Therefore unlike the OPSRU CHaw]ey) add The R~h~
of the Crown {M~n~stry of N~tur~l Re~Qurce~) G.$.B.0051,
0389/88 (N. Dissanayake) decision where the Board found that
there was no factual'basis to support the assertions of
management, we find that in this case, the facts support
management's conclusions. The Un'ion did not establish that
the assessment was wrong or even unreasonable.
The purpose of the PPR is to provide the employee
with feedback on the employee's performance during a period
of time. The principles and governing standards against
which the process must be considered are set out in the
Personnel Policy and Procedure Manual.
Under the governing standards and procedures, it is
the responsibility of the supervisor to:
- ensure that employees know how they will meet
their major job responsibilities through on-
going discussions with employees during the
Page 11
review phase, and through formalized appraisal
at the end of the review period.
The grievor's job specification described his
responsibilities as "Instructing inmates assigned in welding
and machine operation. Assigning projects to assigned inmate
helpers according to aptitude, ability and manual dexterity;
exercising strict economy of operations, checking waste,
tracing and correcting faults, referring difficult or obscure
problems to supervisor...".
We accept the evidence from Roger Heard that he
told the grievor on more than on occasion that the inmates
needed better direction in order to make the products of the
required standard. The fact file represented thOse occasions
when the whole job had to be reworked and not a singular
item. When the problem became apparent again in September,
the problem was again discussed.
We find that the employer did not contravene the
governing standards and principles by failing to make and
keep the' grievor aware of his problems. The grievor knew
from the outset that his primary responsibility was to
supervise the inmates' work. The grievor was told in January
1989 that his work did not conform to the employer's
standards, and again in September. We do not find that the
obligation to' have ongoing discussions is one to review
problems that do not continue to exist. However, if the
problem continues the employee must be ~made aware of the
problem. Mr. Heard satisfied this obligation.
Furthermore we find that the Employer was objective
in its analysis of the grievor's work. We are satisfied that
the PPR was addressing the performance of the grievor while
Page 12
he was at the work site and that it is not criticizing him
nor prejudicing him for his union work. We find that the
Employer did not appraise the grievor contrary to the
governing standards and procedures.
Therefore this grievance is dismissed.
Dated at Toronto, this I4 day of February, 1992.
B. A. Kirkwood, Vice-Chairperson
~mber
J.Scott, Employer Nominee