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HomeMy WebLinkAbout1991-2968.Baron et al.93-01-12 ONTARIO EMP&O¥~S DE LA COURONNE CROWN EMP£ 0 YEE$ DE L'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT 'REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z$ TELEPHONE/T~-L~-PHONE: (.~'r6,1 326- ~388 180, RUE DUNDAS OUEST, ,~UREAU 2100, TORONTO (ONTARIO). M5G ~IZ8 FACSIMILE/TE'LL-~COPiE : (4167 326~1396 2968/91, 2976/91 IN THE I~,TTEI~ OF ~ 3~.BITI~TION Un,let THE CROW"iq EHPLOYEES COLLECTIVE B~RG~INING ~CT -Before THE GRIEV3~CE SETTLEMENT BO3tRD BETWEEN OPSEU (Baron et al) Grievor - and- The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: W. Kaplan Vice-Chairperson P. Klym Member M. O'Toole Member FOR THE P. Munt-Madil. UNION counseI Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING January 22, 1993 Introduction This case concerns nine somewhat differently worded grievances filed by all of the full-time classified probation officers working in the Ministry's Oshawa and Ajax offices. The .grievances are to the effect that-the Ministry's distribution of work within the Peterborough Area Probation Services is unfair and is detrimental to the employees' health. The remedy requested is that the workload be equalized throughout the Peterborough Area. The case proceeded to a hearing in Toronto at which time counsel for the employer raised a preliminary objection. Employer counsel argued that inasmuch as the grievances were about workload, the Board did not have jurisdiction with respect to them as workload was an exclusive management function assigned to the Ministry by the Crown Employees Collective Bargaining Act. Union counsel argued that the Board did have jurisdiction with respect to this case. It was not necessary to hear any evidence for the purpose of determining this preliminary objection, and the case proceeded directly to argument. Union Argument Union counsel began her submissions by providing the Board with some background facts. The grievors provide probation services to youth who have terms of probation set by a judge pursuant to the Young Offenders Act. The grievors' workload is determined by the number of cases assigned, and each case involves one young offender on probation. Six of the grievors work in the Oshawa office, and the remaining three work .in the Ajax office. These two offices are part of the Peterborough Area for administrative purposes. Union counsel made two arguments in favour of her position that the Board had jurisdiction over these grievances. First, counsel submitted that the workload in the Peterborough Area is being determined in an unreasonable, arbitrary and discriminatory fashion and, furthermore, that management is acting in bad faith. Second, counsel argued that the employer wa~ in violation of Article 18.1 of the collective agreement insofar as it was not taking reasonable provisions for the health and safety of the grievors. Counsel advised the Board that she had provided particulars of this health and safety violation to employer' counsel, and it was indicated to the Board that further particulars would be forthcoming should the Board take -. jurisdiction in this case. Counsel advised, in the meantime, that.~he increased workload has adversely affected the health of some of the grievors. With respect to the first ground, union counsel did not take issue with the fact that management has the right to assign and organize work, but submitted that this right was not unfettered, and it could, accordingly, be subject to arbitral review. In counsel's submission, the employer'was allocating work in such a manner so as to impose an extraordinarily high case load on the grievors. This case load was not, in counsel's view, rationally connected to the employer's stated objectives, and was also discriminatory inasmuch as the grievors had a higher caseload than other probation officers in the Peterborough Area. Counsel also suggested that the workload assignment was in bad faith because the employer has established certain standards which it expects the grievors to meet, and failure to meet these standards can result in discipline. While none of the grievors had been disciPlined for failing to meet these standards, (which was impossible given the workload), that potential did exist and it illustrated, counsel suggested, the bad faith activities of the employer. Moreover, in counsel's view, this liability for discipline made management's action subject to arbitral scrutiny, and counsel referred the Board to the Bousquet .541/90 (Gorsky) decision as one of a number of authorities on point. Employer Argument Employer counsel argued that this case was not about health and safety. Rather it was about workload, and as the union conceded that workload was a statutory management prerogative, counsel urged the Board to dismiss all nine grievances. " In counsel's' submission, the Board must, in reviewing its jurisdiction in a case of this kind, ask itself what the fundamental nature of the grievances before it actually (s. In this case, counsel suggested that a review of the grievances indicated that they were not about health and safety. Instead, they were about workload. That this was the correct characterization of the grievances was made apparent to employer counsel by the fact that the remedy requested was an equalization of workload, not some other remedy more readily associated with a breach of Article 18.1. Counsel conceded that the grievances also referred to the workload as being detrimental to health, but argued that they were, nevertheless, fundamentally about workload. Counsel cited a number of cases to the Board including Warden ] 152/97 (Dissanayake). That case involved a grievance alleging that the workload was causing stress. Changes to the workload were sought as remedy. The employer argued Jn Warden, as in the instant case, that the grievance should be dismissed as inarbitrable. The union argued, as here, that the grievance also alleged a violation of the health and safety provision of the collective agreement, and so the Board had jurisdiction with respect to it. The Board in Warden found: The Board agrees with counsel for the grievor that. it is not essential that the grievance refer specifically to a particular article in the collective agreement or provision in the Act before it becomes arbitrable. Nor are we unduly concerned that the grievance did not use the phrase "health and safety" and did not articulate a health and safety issue precisely. In that we recognize that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a grievance merely because of technical defects or imprecise language. Ali that is required is that the true nature of the grievance must be communicated to the employer. ...If the thrust of a grievance is a health and safety issue under article .1 8.1, then in our respectful view that grievance is arbitrable despite the fact that the resolution of that grievance may necessitate an inquiry relating to the employer's exercise of management rights. The issue here then is, does the thrust or the central ~. issue in the grievance before us relate to a health and safety issue (at ?-~3). The Board in Warden determined that the grievance before it failed to meet this test, and accordingly dismissed it as inarbitrabte. Employer counsel urged a similar result in the instant case, and suggested that following careful consideration it could not be said that the thrust of the grievances before the Board related to a health and safety issue. Accordingly, counsel argued that these grievances should be dismissed. Counsel pointed out, however, that the Warden case was somewhat different from the instant one in that' the grievor in that case had not made his health and safety concerns known to the employer prior to the hearing while those concerns had been made known in the instant case. Counsel also referred to Union Grievance 0311/88 (Watters). In that case the grievance specifically referred, among other things, to inadequate staffing and a violation of article 18.1. That was, in counsel's submission, a different case from the instant one where the health and safety issue was an add-on, and not part of the fundamental issue in dispute, namely the workload at the Oshawa and Ajax offices. in conclusion, counsel suggested that it would only be necessary to deal with the union's allegations about management acting unreasonably, arbitrarily, discriminatorily and in bad faith if the Board took jurisdiction in the case, and then these allegations would best be dealt with in the context of a full review of the merits. Union Reply In reply, union counsel took the position that the Board had the right to take jurisdiction on either of the two grounds advanced in argument. Simply put, the Board could take jurisdiction on the basis of the union's claims about management conduct given the Bousquet decision. It could also independently take jurisdiction given the fact that a health and safety violation had been alleged. Counsel suggested that the cases relied on by the employer supported the union, and pointed out that for the Board to take jurisdiction over these grievances they need not specifically refer to article 18.1. The employer was effectively put on notice when the grievances were filed that health and safetY was in issue, and there was no question in this case of it being taken by surprise. Counsel suggested that the Union Grievance decision was on all fours with the instant case, and counsel 'noted that the Board readily took jurisdiction over a grievance alleging that employee complement was adversely affecting health and safety. Counsel referred the Board to one other decision, Jostman. Cargill-Sim 1437/89 (Watters). In that case the statement of grievance referred to Article 18.1, as well as to the employer failing to provide the grievors with reasonable working space "to the detriment of our health, family life, and work quality." The grievances continued:, "Further, 'at our office, we are forced to work in a dangerously .crowded and hostile environment under continuing harassment, by Ministry of Labour employees and without appropriate office services or facilities, preventing us from providing good service to our client groups, and producing health-threatening stress and anxiety" (at 1). The employer objected that the grievances were inarbitrable, and the Board dismissed that objection. It found that: These grievances, on their face, assert a contravention of article 18.1 of the collective agreement. Further they refer to certain working conditions which could :'~ potentially result in adverse health and safety consequences. We do not think, it essential that grievances of. this nature isolate particular threats or physical encounters which have occurred, as article 18.1 appears to contemplate situations wherein grievances can be pursued to prevent a risk from arising. In this respect, we have been persuaded that the thrust of the grievances are health and safety related. The fact that the resolution of those issues may necessitate an inquiry relating to the'Employer's exercise of management rights does not serve to preclude the hearing of the complaint .... (at 6-7) Counsel argued that this case also applied with respect to the instant one, and urged the Board to apply the appropriate principles found in it. In the 8 ~./ event that the Board did so, both parties requested that we remain seized with respect to the merits. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the employer's preliminary objection must be dismissed. In our view, the grievances, on.their face, allege a violation of the health and safety provision of the collective agreement. Accordingly, the Board must take jurisdiction with respect to them. We do not agree that the main thrust of these grievances, as written, is workload, although it is, of course, possible that we might eventually reach that conclusion. However, only by taking jurisdiction and hearing evidence and argument can this matter be decisively determined. Very simply, the grievances allege that management's actions with respect to staffing violate article 18.1. While staffing is an exclusive management prerogative, health and safety violations are properly before the Board, and it is on this basis that we are taking jurisdiction. As was the case in Union Grievance we find that it is proper "to hear evidence in respect of the allegation in order to determine if there is merit to it. This is a question which, in our estimation, cannot be answered without the presentation and consideration of relevant evidence. The fact that staffing and complement may be part of management rights under Section 18 of The Crown Employees Collective Bargaining Act is not a bar to the assessment of the health and safety complaint" (at. 6). As is also noted in Jostman, Cargill-Sim: "Ultimately, the Board will have to determine whether [the grievances] have merit, and if so, whether we can '9 provide an appropriate remedy. The Employer will then be accorded a further opportunity to argue as to the existence of any constraints on our remedial jurisdiction" (at 7). As a result of making this ruling, it is not necessary for us to make any findings with respect lo whether or not the Board has jurisdiction to review exclusive management prerogatives where it is alleged that the employer is acting in an unreasonable, arbitrary and discriminatory fashion, as well as in bad faith. The case shall r~econvene on dates set by the Registrar. DATED at Toronto this 121:h day of ~'ebruary 1993. William Kaplan Vic:~-.Chairperson P. Klym I~ember M. O'Toole Member