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HomeMy WebLinkAbout1996-0926.Metcalf&Mercer.97-04-09 ONTARIO EMPLOYlS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 926/96, 927/96 OPSEU # 96F157, 96F445, 96E721 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Metcalf/Mercer) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE: N Dissanayake Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 3, 1997 2 PRELIMINARY DECISION The Board was seized with 3 grievances, namely a group grievance and an individual grievance filed by Mr Jeff Metcalf and an individual grievance filed by Mr Bill Mercer In accordance with the agreement of the parties, the individual grievance of Mr Metcalf was adjourned sine die and I remain seized of that grievance This decision deals with the preliminary issue of the arbitrability of the group grievance and Mr Mercer's grievance The parties filed the following agreed statement of facts 1 The OPS Strike took place February 26, 1996 through to March 31, 1996 2 The Guelph Correction Centre is a medium to high security correctional centre for adult males operated by the Ministry of the Solicitor General and Correctional Services It houses approximately 500 inmates who are serving sentences of less than two years 3 Prior to the strike, the Employer, pursuant to the Crown Employees Collective Bargaining Act, entered into a number of local essential and emergency service agreements A copy of the essential service agreement for the Guelph Correctional Centre and OPSEU is attached (#4) A copy of the Correctional Officer position specification is attached (#5) 4 During the OPS strike in 1996, the issue of work refusals due to health and safety concerns by Correctional Officers was the subject of disputes adjudicated before l)the OLRB, 2) an Adjudicator under the Occupational Health and Safety Act and 3) the ontario Court (General Division) 5 By and large the various boards and tribunals consistently issued orders that significantly limited the movement of inmates within the prison during the strike, although none of those cases dealt with a complete stoppage of work - ~ 3 6 Mr J Metcalfe the Certified Member representing workers of the Joint Health and Safety Committee entered the jail shortly after 10 00 a m See Attached (#6) 7 There was one work refusal on February 26, 1996 by Correctional Officer Good A decision pursuant to that refusal was issued by Mr Don Hall of the Ministry of Labour, while that matter was investigated No refusing worker was assigned to other duties Mr Hall's decision in that case indicated that the worker did not have the right to refuse work No appeal was taken of that decision Mr Good's concern was satisfactorily resolved 8 On March 25, 1996, Correctional Officers reported to work for the morning shift at 7 00 a m shift but did not proceed to their assigned posts Shortl y thereafter, they initiated work a refusal in accordance with the Occupational Health and Safety Act 9 Sometime between 8 00 a m and 9 00 a m a conference call took place involving Mr Bill Mercer and Mr E Locke, both OPSEU members exercising their right to refuse to work pursuant to the act, and Mr Don Hall of the Ministry of Labour Health and Safety Inspection Branch 10(a) Mr Don Hall is not a member of the bargaining unit and as a member of management does not regularly perform inspections in circumstances of work refusals He is a certified Health and Safety Inspector (b) Mr Hall advised that in his opinion, the Correctional Officers at Guelph Correctional Centre dld not have the right to refuse work under the Occupational Health and Safety Act The call ended at about 10 00 a m (c) Another conference call occurred at approximately 10 30 a m involving Mr Hall, Hr Hetcalf, Hr Mercer, Hr Locke and management representatives In that conference call, Hr Hall issued his verbal decision in which he indicated that the Correctional Officers did not have a right to refuse work as it was inherent to their work pursuant to section 43 of the Occupational Health and Safety Act Hr Hall also spoke separately with OPSEU and Hanagement representatives during the call 11 Through the course of the second conference call Mr Hall assisted the parties in developing a possible settlement The call ended - --- 4 12 Immediately following Mr Hall's decision, at approximately 11 00 a m Lt Duffield informed the refusing workers of Mr Hall's decision, then delivered an order that all C 0 s ought to return to their assigned posts Lt Potter also indicated that those continuing to refuse work would not be paid Lt Potter also indicated that all those who continued to refuse work should leave the work place No one left the work place 13 A draft settlement document was subsequently that afternoon developed by the parties and faxed to senior officials from both parties who were attending a hearing held by an adjudicator pursuant to the Occupational Health and Safety Act in Toronto (See #7) 14 The proposed settlement was not executed 15 At the beginning of each shift, through March 25, 26 and 27, management personnel would indicate to the new shift that they were ordered to their posts and if they did not attend at their posts, they would not be paid 16 Subsequently, Lt Poole said in the presence of all refusing workers to Metcalf that if he did not leave the work place the police would be brought in to have him charged with trespassing 17 The work refusal continued until March 27, 1996, when Mr Justice Adams issued an order to return to work (See #8) The Correctional Officers returned to work in compliance with Mr Justice Adams' order at approximately 5 00 pm, March 27, 1996 18 During the work refusal, shift changes occurred as scheduled pursuant to the Essential services Agreement All Correctional Officers who reported for work participated in the work refusal On some of the shifts an insufficient number of persons reported for work In these circumstances, Mr S Cybulski, Deputy Superintendent contacted the Vice- President of the Local, Bill Thompson, to obtain the name of replacement workers in accordance with the Essential Services Agreement who were then called into work by the Ministry When the replacement workers reported to work, they were escorted to the staff lounge and in the presence of Mr Metcalf advised of the work refusal and were asked whether they were going to participate in the work refusal or whether they wished to proceed to their assigned posts They were further advised at this time that if they refused work they would not be paid All such persons refused to work - 5 19 During the work refusal on March 26 at approximately 4 25 P m an emergency situation arose involving an assault by an inmate on Lt Kruger to which a number of the workers exerciSing their right to refuse to work responded as did management personnel workers The workers were thanked by Lt Hawkins for their intervention The lncident lasted approxlmately five minutes 20 At approximately 8 00 am, March 27, the Employer delivered to the workers a copy of the order issued by Mr Hall (#4) 21 None of the workers who particlpated in the refusal were paid for the period from 11 00 a m March 25, 1996 through to 5 00 P m March 27, 1996 No dlsclplinary actlon was taken by the Employer against the individuals involved during or after the strike The parties reserved the right to dispute some of the facts set out above However, those disputes are irrelevant for the purposes of determining this preliminary issue It is common ground that the employees who purported to exercise their right to refuse unsafe work under the Occupational Health and Safety Act, were essential workers who were scheduled to work during the strike pursuant to a Essential Service Agreement entered into between the parties In essence, through these two grievances, the union claims that the employees were exercising their statutory right to refuse unsafe work and that they were entitled to be paid their wages for the full duration of their refusal The employer's primary position on the merits of the grievances lS that the employees in question had no right to refuse under the Occupational Health and Safety Act Alternatively, the employer takes the position that its obligation to pay wages, if any, ended when the Ministry of Labour inspector's oral ruling that the employees did not have a right ~ .~--- 6 to refuse work under the Act was communicated to the employees at 11 00 a m on March 25, 1996, or at the very least when the employer delivered a copy of the inspector's written order to the employees at 8 00 a m on March 27, 1996 Quite apart from the merits, in this preliminary motion the employer takes the position that the grievances in question are no longer arbitrable The parties agreed to initially obtain a ruling on this arbitrability issue The union argued that the union was not notified of any objection to arbitrability until 2 days prior to the hearing date and that therefore the employer had waived its rights in that regard The Board rejects this waiver argument The case law relied on by the union deals with waiver of procedural irregularities such as timeliness of filing a grievance In contrast, here the objection to arbitrability is not based on a procedural irregularity In essence the employer is claiming that the grievances have been withdrawn and that in effect there are no grievances to be litigated It is a matter that goes to the very jurisdiction of the Board Such an issue is not amenable to waiver by a party The employer's submissions are grounded upon article 10 of the Return to Work Protocol entered into between the parties at the end of the strike That artlcle reads 10 0 No Reprisals 10 1 Both parties agree that there will be no reprisals, dlscrimination or retaliation for any act or inaction taken by any employee of the employer arising out of participation in the strike In addition both parties agree that no employee shall initiate or partlcipate in any reprisal, discrimination or retaliation for any act or inaction taken by a manager or excluded employee during the strike ---~ 7 10 2 It is agreed that (a) there will be no discipline taken against any employee for any act does during the strike up to and including March 29, 1996; (b) neither party will initiate any grievance or any claim in any court or tribunal for damages or other relief, or any other claim, for any matter arising during the strike, and will discontinue any that have been initiated; (c) in the interest of re-establishing a harmonious workplace, both parties will review any charges that may be outstanding, and will determine whether there are any in which a recommendation to discontinue any such charges might be made to the appropriate authorities The claim in the grievances is for wages for the duration of the refusal in the period March 25 to 27, 1996 Employer counsel points out that the facts which form the basis for this claim arose during the period of the strike According to counsel, in article 10 2 (a) the employer undertook to impose no discipline "for any act done during the strikeN The quid pro quo, counsel claims, was that the union undertook inter alia, that they would not "initiate any grievance for any matter arising during the strike, and to discontinue any that have been initiated Since these claims arose during the strike, counsel argues that the protocol prevents grievances with respect thereto and if filed, the grievances are deemed to be withdrawn Similarly counsel argues that even if generally employees were entitled to appeal a ruling by a health and safety inspector, the protocol prevented the filing of such an appeal and any appeal launched is deemed to be discontinued There is no question that the employer reads artlcle 10 2(b) very broadly Upon belng questloned by the Board whether a grlevance which had nothlng whatsoever to do with the strlke, such as a claim for mileage by ...... 8 an essential worker who worked during the strike, would be deemed withdrawn merely because it rlrose durlng the period of the strike, counsel replied in the affirmatlve In his view, in the interest of "re-establishing a harmonlous workplaceu as expressed in article 10 2(c), the parties intended to "wipe the slate clean and start all overu Counsel recognized that the Board in Re Addorisio, 824/96 (Roberts) had considered and rejected such a broad interpretation However, I was urged not follow that decision on the grounds that it was manifestly wrong In that case the Grievor had grieved that when she was required to work as an essential worker during the strike, she was entitled to two consecutive days off between work weeks The employer made two preliminary objections to jurisdiction The first was that under article 10 2(b) of the Return to Work Protocol the grievances were barred Secondly, it was argued that under article 5 of the Memorandum of Settlement executed by the parties on June 13, 1996 the grievance was withdrawn That provision reads Memorandum of Settlement 5 Subject to paragraphs 1, 2, 10 and 11, all grievances where the facts that gave rise to the grievance are contained in the same period as the strike are hereby withdrawn It is agreed that cases of suspension (or) dismissal, if any, shall be processed in accordance with the parties' understanding on expedlted arbitration process It is further agreed that "here there has been a change in an employee's woryirg conditions that are of a continuing material change, the matter shall be processed in accordance with the parties' understanding of expedited arbitration process With regard t:: the arg~~ent based on article 10 2 (b) of the Return to Work Protocol, the Board held as follows at pp 2-3 - 9 Turning first to the Return to Work Protocol, article 10 ~ (b), above, counsel for the employer submitted that the grievance at hand fell squarely within its scope The grievance concerned a matter that arose during the strike and, as such, lt was submitted, pursuant to article 10 2(b) the union had expressly agreed to discontinue it In an oral deC1Slon rendered at the hearing, I dismissed thlS ground of preliminary objection To apply article 102(b) of the Return to Work Protocol as suggested by the employer would, I concluded, 19nore the thrust of the overall provlsion of whlch it formed a part Article 10 0 of the Return to Work Protocol was entitled "No Reprisals", and it is that context which must govern the scope of article 102(b) This essentially means that in article 10 2 (b) , the union agreed, inter alia, to discontinue any grievances that might properly be characterized as reprisals agalnst the employer for matters that arose during the strike Here, the grievance cannot be characterized as a form of reprisal It merely seeYS relief for an allege administrative failure by the employer, ie, to schedule essential wad ers wlth two consecutive days off between vlor weeks In rejectlng the objection to jurisdiction based on article 5 of the Memorandum of Settl<:'rnent, the Board held at pp 3-4 Proceeding _n to article 5 of the Memorandum of Settlement, above, counsel for the employer submi tted U at its opening sentence had the effect of withdrawi::] all grievances where the facts that gave rise the grievance are contained in the same period I the strike " Since the facts giving rise to the ,. levance at hand occurred during the period of +- ~ _,trike, counsel went on, the unlon L effectively It. drew the grievance when it agreed to article In an oral d ~is~on rendered at the hearing, I also rejected th ~ ground of preliminary objection It seemed t,) r ~ that, when read alongside the other articles in the iemorandum of Settlement, article 5 could not interpreted as some sort of omnibus withdrawal r rievances that depended upon facts that occurr d_ring the strike If that were so, the partJ.cs v::uld not have found it necessary to r- . 10 negotiate ;:'1 number of other provlsions into the Memorandum ~f Agreement that withdrew specific types of ~rle'JlnCes For example, article 6 withdrew gr~ Jances requesting premium payments for persons deSl n~ted as emergency workers during the strike Ar ~le 4 withdrew all grievances claiming payment du'~ t:> a staggered start for the strike I concluded Lhat the better view would be to find that the parties intended the general language in the openlng sentence of article 5 to withdraw grievances th'lt were not preserved in the more specific t s _,f circumstances addressed in the remainder c the article For example, the second sentence article 5 expressly preserved grievances -y suspension or dismissal Reading the two scn- ~cs together, it would seem that the parties 1n ,_ I cd to withdraw grievances for less severe disc-'-1-Jline, like verbal or written warnings, so long as the discipline did not constitute a reprisal (D-,-scipline constituting a reprisal was forbidden 1 r> article 10 0 of the Return to Work Protocol ) I am in a~n nen t with the reasoning of Vice-Chair Roberts that in article 10 2 (b):! c;rties only intended to deal with grievances that might properly be haracterized as reprisals against the employer for matters that arcse I r~ng the strike or vise versa As a whole, article 10 is an attempt t: prohibit reprisals on the part of both parties for matters that arose r~ng the strike It cannot reasonably be interpreted as an abdication i :~p union of the right to grieve anything that arose during the peric:l restrike Article 10 2(a) is also couched in the same language, t~ Ie employer will not discipline for "any act done during the stri}e Tf the employer's interpretation 1S correct, under article 10 2(a) tl mployer would have given up the right to discipline an employee who f:r ,,'ple during the strike committed a serious offence totally unrelatpJ - tre striKe, such as theft or sexual assault of an inmate I am cor rJ that that was not the intention of the parties in - 11 executing either Return to Work Protocol or the Memorandum of Settlement As r J ,ut in Re Addorisio, if such a blanket withdrawal of grievances w 1 L~;aged, it would not have been necessary for the parties to inc I 1.n the Memorandum of Settlement, provisions for withdrawal of speLl - types of grievances While the parties desired to reestablish a harm: v:us workplace, that was to be achieved by avoiding or discontinuing litin~ -n which was in the nature of reprisals against each other In article I ::' (c) of the Return to Protocol the parties agree, in the interest of -r'~ t ,blishing a harmonious workplace, to review any charges outstawli ! \ it h a view to determining whether a recommendation should be made to t 3[propriate authorities to discontinue those charges The review envisa ;0 I in this provision must be with an aim to decide whether any outstaw', nJ matter came within article 10 2 (b) That provision is a strong incL.L.Cl t,lon that the parties did not envisage the discontinuation cf 1 cutstandlng matters that arose during the strike For all of ., reasons the employer's objections are denied The Board will reCOD\c _t1 June 24, 1997 to deal with the two grievances in question Dated this 9thdaj 1, 1997 at Hamilton, Ontario -- ~~~~-ZJ~- Nimal V Dissanayake Vice-Chairperson