Loading...
HomeMy WebLinkAbout2018-1938.McLaughlin.19-03-19 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2018-1938 UNION# 2018-0368-0196 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McLaughlin) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sia Romanidis / Kevin Morris Treasury Board Secretariat Employee Relations Advisor / Employee Relations Intern HEARING WRITTEN SUBMISSIONS February 25, 26; March 4, 8 and 11, 2019 -2- DECISION [1] The Employer and the Union at the Central East Correctional Centre agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol (the “Protocol”) that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. The process anticipates that the arbitrator will issue a decision in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it would be without precedent or prejudice to any other matters between the parties, and would be issued without written reasons. As the length of this decision indicates, this case is an aberration. [2] David McLaughlin is an electrician at the Central East Correctional Centre (“CECC”) in Lindsay, Ontario. His grievance, dated August 9, 2018, states that on August 6, 2018 an elevator at the CECC failed, and that no electricians were called to attend at the facility. It further alleges that a Manager went into the “elevator machine room”, attempted a reset of the elevator, and then turned off the elevator controls, which the Grievor alleges is against “TSSA laws” as well as Articles 2 and 3 of the Corrections collective agreement and other legislation. As a remedy, the Grievor seeks to be awarded statutory holiday pay and 4 hours of call in pay at two times his regular wage rate. [3] This grievance was addressed on February 25, 2019, the first day of the med-arb session at the CECC. After the Union had outlined the facts the Grievor was relying upon, the Employer, having spoken to the Manager the Grievor had identified that day as the alleged culprit, made its submission to refute the Grievor’s assertions. The Union then requested that the Employer provide the log book entries for those who had entered the CECC on August 6, 2018, and the electronic print out for the key press, which it alleged would show who had drawn the key for the elevator control room on August 6, 2018. Although it was late in the day, the Employer agreed to try to find the records the Union was requesting, and provided some further information in response to the Union’s position. [4] On the second day of the med-arb session, February 26, 2019, the Employer produced the log book entries for August 6, 2018, and maintained its position that there had been no breach of the collective agreement on the day in question. The log book entries were not helpful to the Union. The Union continued to request the key press records, and added that it also wanted to see the Employer’s computer record regarding when the elevator control room door (#8- 11) was opened on August 6th. The Employer provided the Union with the Key Daily Log Sheet for the day in question. It became evident that the facility has a manual key press, not an electronic one, so the record contained hand-written entries. They were not helpful to the Union. -3- [5] By late in the day on February 26, 2019 the Employer had advised that it had produced all the records it could, and that the mediator-arbitrator had enough information to write a decision in accordance with the Protocol. The Union insisted that it wanted a production order for the electronic records relating to the elevator control room door. I had indicated I would reserve on my decision. [6] Before a decision could be issued, Mr. Sidsworth wrote to the mediator-arbitrator on March 4, 2019, copied to the Employer, seeking a production order and to have this grievance put over to the next local med-arb dates in November 2019. His submissions relied on three decisions issued in accordance with the Protocol. [7] The Union argued that section 3.3 of the Protocol gives the arbitrator the power to put this grievance over to the next set of local med-arb dates to be held at the CECC. The Union indicated it was assenting to have this grievance addressed at the November 26 and 27, 2019 med-arb dates at the CECC. It further argued that the three decisions were examples of situations where a grievance was not resolved at one set of med-arb dates, and was deferred to the next med-arb session. (OPSEU (Grant) v. MCSCS, GSB #2017-3080, F. Briggs, July 9, 2018; OPSEU (Salmon) v. MCSCS, GSB #2017-0415, I. Anderson, November 21, 2018; and, OPSEU (Maitland) v. MCSCS, GSB #2015-1655 et al., D. Leighton, February 27, 2019). [8] Section 3.3 of the Protocol states as follows: 3.3 If a grievance appears to be too complex or other issues are identified at any point during the proceedings, at the earliest opportunity, the parties will either book an additional date with the Vice-Chair, or agree that the union will advance the grievance to the next JFR to be scheduled. [9] The Employer filed its response on March 8, 2019. It noted that none of the decisions the Union had relied upon had facts similar to those before me in this instance. They are all instances where a grievor had not attended at any of the med-arb dates set, or had not attended at a number of local med-arb sessions in the past, despite having had notice of each date. As well, those grievors had failed to provide a reasonable excuse for their failure to do so. In each decision the arbitrator had directed the grievor to attend at one of the next med-arb dates, and warned the grievor that failure to do so may lead to the grievance being deemed withdrawn. [10] The Employer submitted that Mr. McLaughlin attended at both of the February 2019 local med-arb dates, and has had the opportunity to provide documentation and submissions in support of his grievance. As such, the Employer relies on sections 3.3 and 6.3 of the Protocol for the proposition that it does not agree that this grievance warrants delay to another date, nor does it meet the criteria set out in section 6.3 of the Protocol. Section 6.3 states as follows: The parties agree that in the event that a Vice-Chair determines: -4- a. The evidence available at the mediation session as contemplated in paragraph 1 of this section is insufficient to enable a True Mediation-Arbitration; and/or b. There are conflicting legal interpretations related to the subject matter of the grievance, and/or c. The decision may impact on an institution’s ongoing business practices; and/or d. That for any other reason the grievance is not suitable to proceed under the Mediation-Arbitration process, The grievance shall proceed to a one-off date with the Vice-Chair or through the Joint File Review process for scheduling. [11] The Employer argues that the Grievor only disclosed particulars pertaining to his grievance on February 25, 2019; nonetheless, the Employer worked over the course of the two days to gather and provide what information was available to it; and that a delay in this process is not warranted when the real question raised by the grievance is whether the Grievor was entitled to be called in on a statutory holiday. The Employer submits that this process is intended to deal with grievances in an expeditious manner, and that a further delay of approximately nine months is not warranted. [12] The Union filed reply submissions on March 11, 2019. It continues to maintain that the Protocol permits an arbitrator to carry over grievances to the next med- arb session, or for the parties to schedule an additional date with the arbitrator. It also maintains that the cases it provided support its position. The Union submits that should it receive the production it seeks, it would demonstrate the Grievor’s credibility, and that his description of events is accurate. It also argues that a production order would preserve the confidence of its members in the expedited med-arb process. The Union concedes that no arbitrator has issued a production order in this expedited process, and that the intention of the Protocol is to deal with grievances, to the extent possible, in an expeditious manner. [13] Having considered the Union’s request for a production order in this expedited med-arb process, I decline to do so. There is no precedent for such an order in this process, and in the particular circumstances of this case, I am not convinced that much would be gained by issuing a production order, or putting this grievance over to the November med-arb dates. My reasons for reaching this conclusion will become more evident in the remainder of this decision. Furthermore, it would be contrary to the intentions of the parties that they have a quick process in which each side makes its submissions based on the evidence they have, and the arbitrator makes a decision that is without prejudice or precedent. [14] This is a grievance in which the Union bears the onus of establishing that the Grievor should have been called into work on a statutory holiday when an elevator was not working. It asserts that a Manager went into the elevator control room and tampered with the elevator. The Union bears the onus of proving its assertion. -5- [15] According to Mr. McLaughlin, on or about Tuesday August 7, 2018 a private contractor elevator technician who was at the CECC told him that the elevator controls had been turned off, and he was there to reset the elevator. This elevator technician is also alleged to have told the Grievor that an emergency elevator technician had been called in on Monday August 6, 2018, and that person had told the regular elevator technician that when he had come in, he had been unable to repair the elevator because it had been tampered with and then shut off. Based on this second-hand information, the Grievor was of the view that Chad Chambo, the Manager on duty on August 6, 2018, had gone into the elevator control room, tampered with the elevator controls, and turned off the elevator. [16] Mr. McLaughlin maintains that in the normal course, when there is an elevator problem, one of the electricians, like the Grievor, is called in to have a look at the elevator controls. If they can easily identify the problem, they may fix it. However, as they are not certified to work on elevators, they can only trouble shoot, and if the problem appears to be beyond their scope, then the outside contractor elevator repair company is called. The Grievor provided examples of when he had been called in to check on an elevator that was not working. There were no examples of an electrician being called in on a statutory holiday to check an elevator that was malfunctioning. [17] In this instance, the Grievor maintains that one of the electricians should have been called in on the statutory holiday to see whether they could fix the elevator. Only if they could not, should the emergency elevator repair person have been called in. Since it is Mr. Mclaughlin’s view that Mr. Chambo went and checked on the state of the elevator, he also claims that the Manager did bargaining unit work. [18] According to the Employer, Mr. Chambo denies ever having been inside the elevator control room, and specifically denies that he went into that room on August 6th, or did anything with the elevator controls. He indicated he had called the Manager of Maintenance & Environmental Services to see what he should do, and was advised to call the emergency elevator repair company. The Maintenance & Environmental Services Manager cannot recall what the elevator problem had been on the day in question, but the general practice is that managers on weekends would call him, and depending on the apparent seriousness of the issue, he would tell them to either call an electrician or to call the elevator company. [19] While there are no the log entries made by Mr. Chambo on August 6th to indicate when he had called the elevator repair company, it is clear from the following Manager on duty, Ms. Miller’s log entries, that a CONE elevator repair person attended at the CECC at 7:45 p.m. that night, and left at 8:30 p.m. having indicated he could not fix the issue that night, and that another technician would attend at the facility on the following day. -6- [20] The Employer referred to a document titled “Critical Alarms – 1 2 3 Depicts Suggested Order of Call-In”, which lists what trades are to be called in, and in what order, when there are critical alarms in the various systems at the facility, e.g. the boiler, chiller, isolation room, auger/grinder, loop pressure, Room 7-59, heating pump by-pass, freezers/coolers, elevators and fire alarms. For most alarms, there is an order of call-in depending on which trade is normally responsible for that area, followed by others who may be capable of dealing with the alarm. As such, for some alarms the order of call-in would be plumbers first, followed by mechanics, and lastly electricians, or the other way around. For “Elevators & Fire Alarm”, only CBRE Emergency repairs and a 1-800 phone number is listed. Electricians are not listed as the first trade that must be called in for elevator-related issues. [21] It is worth noting that the Key Daily Log Sheet did not assist the Union as there were no notes of the elevator control room key being signed out at any time on August 6, 2018. As such, there is no evidence that Mr. Chambo, or any other Manager, used the key to enter the elevator control room. There is also no indication of the key being signed out to the elevator repair technician who attended at the facility on the evening of August 6th. [22] Even if the Employer had been able to produce the electronic records identifying when the elevator control room door was opened on August 6th, those records would not show who had entered the room at any given time. They would only show that someone did. As such, I have determined that there is nothing to be gained by issuing a production order for those records. This is a case in which the Union and Grievor bear the burden of proving that a Manager did bargaining unit work, and there is simply no evidence to support such a finding, even if the electronic door records were available to the Union. [23] Furthermore, electricians are not the designated first trade to be called in when there is an elevator issue. Rather, the List indicates that CBRE is to be contacted. It appears that the Employer exercises its discretion about whether to call in an electrician depending on what the elevator problem appears to be, but that is not a requirement. In this instance, the Employer exercised its discretion to call in CBRE, and it was entitled to make that decision. Finally, there is no evidence before me that any electrician has been called in on a statutory holiday. [24] For the reasons outlined above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 19th day of March, 2019. “Gail Misra” ______________________ Gail Misra, Arbitrator